COURT FILE NO.: CV-19-00000259
DATE: 2022/02/04
SUPERIOR COURT OF JUSTICE - ONTARIO
Between: Martin Harrison and Sheila Harrison
Applicants
AND:
The Corporation of the Township of North Dumfries and the Chief Building Official for the Corporation of the Township of North Dumfries
Respondents
BEFORE: The Honourable Justice R. J. Nightingale
COUNSEL: Shayna Beeksma and Hortense Fraser, Counsel for the Applicants
Daniel Veinot, Counsel for the Respondents
HEARD: December 14, 2021
reasons for judgment
[1] The applicants seek a declaration of industrial use legal nonconforming status for an old secondary building (the “secondary building”) located on lands purchased by them in 2007 municipally known as 1174 Brantford Highway, Cambridge in the Township of North Dumfries (the “Property”).
[2] The respondent Township opposes the application on the basis that the past industrial use of the building was discontinued for a number of years after the death of George Barrett, a previous owner of the Property, resulting in the loss of the legal nonconforming status before the purchase of the Property by the applicants.
Factual Background
[3] The facts are not significantly in dispute.
[4] The prior owners of the Property were spouses George Barrett and Isobel Barrett, who inherited it in July 1966. It consisted of a stone home and an old secondary building that was originally a residence when built in the 1850s and expanded in the 1940s to 2500 ft².
[5] George Barrett operated a small business known as Barrett Engines Limited from that secondary building as a workshop since 1966. The nature of that business involved his working with precision instruments, machine parts and tools on a small-scale, inventing, patenting and making small parts for motors and some design and repair work on combustion engines. He used lathes, drill presses and sanders in his work. He would also fix lawnmowers and chainsaws for people. The secondary building also had an office or meeting room and toilet and sink in a powder room since approximately 1972.
[6] The Township passed its Zoning Bylaw 683-93 on April 4, 1985 at which time the Property was zoned Z3 residential and which bylaw prohibited industrial and commercial use of it. The Property has at all material times remained zoned residential to this day.
[7] George Barrett’s industrial use of the secondary building predated the passage of the Township’s 1985 zoning bylaw. Accordingly, his industrial use of that building was a legal nonconforming use as admitted by the Township.
[8] George Barrett’s business Barrett Engines Limited ceased operations in August 1985 when the corporation was cancelled. Thereafter, George continued to work on his inventions and patents relating to small combustion engines as a hobby in that secondary building until December 8, 1995 when he passed away at age 76.
[9] Following George’s death, Maureen Barrett, George Barrett’s daughter who gave evidence on behalf of the Township, confirmed that the secondary building was used by a friend of her late father for only seven months after his death and only then to complete some orders for the sale of some small model airplane engines that were outstanding at the date of George Barrett’s death but not yet delivered.
[10] After George’s death and the completion of the delivery of the small model airplane orders, no one of George Barrett’s family, being his widow Isobel and adult daughter Maureen Barrett or anyone else used the secondary building for performing any mechanical services or any work on engines or for any other industrial use. The affidavit evidence of the applicant Mr. Harrison in paragraph 103 stating that the secondary building was used for industrial work separate from Barrett Engines Limited until in or about 2004 is not correct.
[11] The applicants provided no evidence of any intention of Isobel and/or Maureen Barrett to continue to use that secondary building for small engine repairs after George Barrett’s death in 1995.
[12] In fact, the opposite is true. The evidence of Maureen Barrett in her affidavit, in cross-examination and by reasonable inference which I accept is clear that neither she nor her mother had any intention to use or allow others to use George’s equipment in the workshop for any productive or industrial use following his death. They had no such experience at all and, as indicated above, there was no such use by anyone else.
[13] After George’s death, Isobel and Maureen then proceeded to sell and give away the lathes, drill presses, equipment and parts of George’s former business over the years. Two of the family’s friends conducted a yard sale.
[14] The only use of the secondary building that was made by Isobel and Maureen Barrett was to store their own personal and household items. Some of George’s machinery, equipment and parts of his business, now likely owned by Isobel and/or Maureen by inheritance as their personal property, also remained until they were sold or disposed of. Maureen Barrett confirmed that the secondary building would only periodically be checked including because of their storing their lawnmowers there which they would use to cut the grass on the Property.
[15] The logical and reasonable inference from all this evidence is that the purpose of Isobel and Maureen Barrett having their late husband/father’s remaining machinery and equipment in the secondary building for those many years after his death was to temporarily store them there until they were sold or disposed of. It is clear from their evidence that they were not storing those remaining items there so they could potentially be used by them or someone else in that building for industrial purposes which had ceased upon George’s death in 1995.
[16] Isobel lived in the house on the Property until July 2005 when she left to live in a retirement home. The entire Property remained vacant from July 2005 until it was sold to the applicants Harrisons on January 26, 2007 except when Maureen Barrett resided in the house from May to September 2006 to prepare the Property for sale.
[17] I conclude when considering all of the evidence including by reasonable inference that the main machinery and equipment of any value and industrial use including the lathes and drill presses had already been sold or given away well before that. I accept Maureen Barrett’s evidence that most of the machinery was gone by then and that less than 40% of George Barrett’s machinery and equipment remained in the secondary building at the time the property was listed for sale in or about August 2006 over that of the applicant Mr. Harrison who initially stated that the secondary building was jampacked with all kinds of machinery. Her evidence makes common sense given that more than 60% of it had already been sold.
[18] Mr. Yahn, the real estate agent on the sale to the Harrisons, simply described them as machinery and old parts scattered around the place and that the main floor had essentially been frozen in time since Mr. Barrett’s death. There is no suggestion that Mr. Yahn knew or could have known what machinery and equipment were there when George Barrett died in 1995 and what had been sold or given away from 1996 to 2006. Accordingly, at best his evidence simply confirms that there was some machinery and some old parts scattered around the place which he saw in 2006.
[19] The applicants provided no evidence that any of that remaining equipment, whatever it was, had any significant value or actual use in late 2006 and January 2007 for a small engines repair service and manufacturing shop. Mr. Harrison in his cross-examination said that when he bought the Property, he “cleaned out all of the junk out of the place.”
[20] The reasonable inference from all of this evidence is that there was little, if anything, left of the equipment previously owned and used by the late George Barrett that had any value or use for a small engines repair and service shop during those 12 years after George’s death.
[21] When the Property was listed for sale, there was neither a well nor septic tank hooked up to the secondary building. The listing agreement described the secondary building as a “workshop”, a “work building” and “tool/repairs/storage shop” with the main floor also made up of an office space. The listing stated that the building required “TLC” and a complete overhaul to the exterior and interior and was being sold in “as is, where is” condition. It had hydro capacity of 550 amp suitable to run a small machine shop.
[22] Nothing in the listing agreement stated that that secondary building could in fact be used then as a workshop for industrial purposes under the Township’s zoning bylaw. The applicant Mr. Harrison had some brief conversations with Maureen Barrett and her mother prior to the sale but there were no discussions regarding the actual or permitted use of the secondary building.
[23] The real estate agent David Yahn confirmed the evidence of Maureen Barrett that the secondary building had not been actively used in a number of years but had only been passively used for some storage for years prior to the property being listed for sale.
[24] I do not find that the separate electrical service to the building still being in the name of George Barrett Engines when the applicants purchased the property in January 2007 to be of any significance or consequence. That business had ceased operating in 1985 and George died in 1995. Isobel and Maureen simply continued to pay that minimal electricity bill for the secondary building that was only being used to store their personal and household items.
[25] Mr. Harrison’s evidence was that he did not speak to his lawyer who acted for him and his applicant spouse on the purchase of the property that was zoned residential regarding his potential use of that secondary building for industrial purposes. When requested on his cross-examination to produce the reporting letter from his lawyer regarding the applicants’ purchase of the property, which by reasonable inference could have made some reference to the zoning of the Property and the permitted uses of the property, that was refused.
[26] The evidence of the applicant Mr. Harrison was that prior to purchasing the Property, he spoke to Darrell Denny, the chief building official of the Township of North Dumfries, to ask if there would be any problems with continuing the existing uses of the workshop and apartment in that secondary building.
[27] He said that Mr. Denny informed him that if the building had historically been used for the purposes that were existing, then the applicants would have no problem in continuing the uses. He admitted in cross-examination that these were not the exact words of Mr. Denny but were paraphrased to that effect.
[28] Mr. Denny did not provide any affidavit evidence.
[29] Mr. Harrison states in reliance on this discussion with Mr. Denny he purchased the Property. As indicated above, he did not disclose what discussions, if any, he had with his own lawyer who acted for the applicants when they bought the property regarding the potential use of that secondary building given the residential zoning under the Township bylaw.
[30] When the applicants purchased the property, they proceeded to move their industrial crane business which manufactured and serviced large cranes to the Property. The applicants in their factum confirm that they started operating a crane business there in 2007 intensifying the industrial and commercial use of the property. They operated that crane operation business including doing repairs to hoists which resulted in complaints to the Township by some of their neighbours.
[31] By letter of January 4, 2012, the Township advised the applicants of the Township’s understanding that the previous Barrett owners had discontinued the legal nonconforming use of that secondary building for several years prior to the sale of the property to the applicants in 2007. The letter confirmed that, as stated within section 4.3 of the Township zoning bylaw, when a nonconforming use is discontinued for a period exceeding six months, the nonconforming status is lost and the property and structures revert to the existing zoning that is active on the property.
[32] The Township requested the applicants to provide evidence to the contrary which it would review but also requested the discontinuance of the applicants’ commercial, industrial, repair or fabrication use of the secondary building. The applicants did not provide any such evidence and in particular from any members of the Barrett family, the previous owners.
[33] By letter of January 20, 2012 the Township again requested the applicants provide evidence of medium to heavy machining being active within the secondary building without any period of discontinuation greater than six months. Again, the applicants did not provide any such evidence but continued with their crane operation/industrial use business on the property.
[34] As a result, the Township in June 2012 ordered the applicants to cease that use of the property as it was its understanding that the workshop had not been used for several years prior to the sale of the property to the applicants (which was clear from the evidence of Maureen Barrett) and that therefore any legal nonconforming status had been lost. The Township requested that the applicants submit evidence that industrial use continued in that secondary building without any period of discontinuation greater than six months. The applicants did not do so and continued their crane operations business.
[35] The applicants started some renovations to the secondary building and the Township issued a stop work order to comply in January 2018 because a building permit could not be issued as, among other reasons, the applicants’ existing and new industrial uses indicated did not conform to the Township’s zoning bylaw.
[36] The applicants state that their use of that secondary building for their crane operation merely expands a pre-existing use within the continuous pre-existing legal nonconforming use or within the generic description of the continuous pre-existing use and as such, their legal nonconforming rights should be protected.
Analysis
[37] Section 34(9) of the Planning Act R.S.O. 1990 c. p.13 confirms that no (municipal) bylaw passed under this section applies to prevent the use of any land, building or structure for any purpose prohibited by the bylaw if such land, building or structure was lawfully used for such purpose on the day of the passing of the bylaw so long as it continues to be used for that purpose.
[38] As noted in Rogers and Butler, Canadian Law of Planning and Zoning, 2d ed., Carswell 2009 at paragraph 6.2.1, the general intention of planning legislation is eventually to eliminate nonconforming uses and replace them with permitted uses; thus, the council may be said to zone out such uses. This is based on the premise that such a use is undesirable because it is incompatible with the existing permitted uses but is to be tolerated because it was a lawful use prior to its prohibition by bylaw.
[39] Section 4.3 of the Township Zoning Bylaw reads as follows:
4.3 Discontinued Nonconforming Uses
Where for any reason the use of any land, building or structure for any use not permitted by this bylaw but which was in existence on the date of the passing of this bylaw has ceased and is not resumed within a six (6) month period of the date of ceasing, such nonconforming use shall not be resumed and any future use of the land, building or structure shall be in conformity with the regulations covering the zone in which the land, building or structure is located.
[40] Section 3.1 of the Township Zoning Bylaw reads as follows:
3.1 In this bylaw, unless the context otherwise requires, the expression “use” or “used” shall include anything done or permitted by the owner or occupant of any land, building or structure, directly or indirectly, or by or through any trustee, tenant, servant or agent acting for or with the knowledge and consent of such owner or occupant for the purpose of making use of the said land, building or structure.
[41] Section 2.220 of the Township Zoning Bylaw defines the term “use” as “the purpose for which a lot, building or structure or any combination thereof is designed, arranged, intended, occupied or maintained and “use” shall have a corresponding meeting”.
[42] Section 2.149 of the Township Zoning Bylaw defines “nonconforming use” as “a use, building or structure which does not conform, comply or agree with the permitted uses for the zone within which use, building or structure is located.”
[43] The onus is on the applicants to establish that they are legally entitled to carry on the legal nonconforming uses that contravene the Township’s Zoning Bylaw.
[44] In order to do so, the applicants must establish that a) the use of the land, building or structure was lawful at the time of the enactment of the relevant zoning restriction, and b) the previous lawful use has continued thereafter.
Feather v. Bradford West Gwillimbury (Town), 2010 ONCA 440 at para.27.
[45] The Township does not dispute that the secondary building was lawfully used for industrial purposes by the owner George Barrett on the day the Township’s zoning bylaw was passed in April 1985 and accordingly was a legal nonconforming use.
[46] As indicated above, the issue in this case is whether the industrial use of that secondary building was continuous, and if so to what extent, from the date the Township bylaw was passed.
[47] The applicants rely on the decision of Forbes v. Caledon (Town of), 2021 ONSC 1442 at paragraphs 60 and 63 which confirmed that the term “use” is interpreted by examining the actual facts occurring on site on the date of the passing of the bylaw and whether a use has been interrupted or abandoned is a question of the facts of the particular case. The court at paragraph 68 also confirmed that in order for a legal nonconforming use to have continued on the subject lands, the use must have continued so far as it was possible in the circumstances.
[48] At paragraph 67, the court confirmed that legal nonconforming use can in some cases be confined to discrete areas and may not apply to the balance of the lands.
[49] In Forbes, the Township’s zoning bylaw prohibited outdoor storage of vehicles and the property owners’ prior use of the property for outside storage of vehicles, machines and equipment. The court made a specific finding of fact based on the evidence that the lands were being used for the outside storage of equipment and vehicles on the date of passage of the bylaw and had been used for that purpose continuously since that time to the present even though there was some seasonal only storage use in the meantime.
[50] The decision in Forbes is consistent with the Ontario Court of Appeal decision of Cobalt (Town) v. Coleman Township, 2019 ONCA 134 which held that the applicants’ onus of establishing a legal nonconforming use must establish that the land was actually used as such prior to the passage of the bylaw. However, the facts in Forbes are significantly different from this case.
[51] Rather, in my view, the facts in this case are closer to those of Feather v. Bradford West Gwillimbury. In that case, the owner Mr. Alder was residing in the cottage and using the balance of the property for docking his boat for recreational purposes when the town bylaw was passed in 1971 which prohibited residential or recreational uses of the property.
[52] Mr. Alder lived in the cottage until 1991 when it sunk into the mud. He intended to fix the problem and return to live in the cottage but did not have the money to do so. He died in 1994 without having carried out the intended repairs.
[53] The estate then sold the property to a neighbour who only used the property to dock boats and occasionally stay in a tent trailer from 1994 to 2004. On the evidence, during that time period the use of the cottage structure for the purpose for which it has been built had been wholly discontinued.
[54] The Court of Appeal at paragraph 44 confirmed that simply docking a boat to the roof of the cottage did not constitute residential use of the cottage and even if it did, that legal nonconforming use was lost over that 10-year period.
[55] The court held that the intention of the new owner to raise the cottage and renovate it was not sufficient to preserve the legal nonconforming use of the cottage as the use of the cottage had been wholly discontinued during that period.
[56] On the facts of this case, there is no question that except for seven months after Mr. Barrett’s death in 1995, for almost 12 years there was no actual industrial use involving servicing, repairs or manufacturing of small engines in the secondary building or any intention to do so by the surviving family members of George Barrett or anyone else.
[57] Moreover, the applicants provided no evidence that any such work on small engines had ever been performed by George Barrett outside of that secondary building on the remaining property until his death in 1995. The evidence is clear, including by reasonable inference, that there was no such work on small engines outside that secondary building after 1995 to the date of the applicants’ purchase of the property in January 2007.
[58] It is the total discontinuance of any actual work or servicing on small engines by anyone in that secondary building after 1995 and the clear intention of the previous owners, Isobel and Maureen Barrett, that there would be no such work performed in the secondary building or on the property is determinative in this case similar to the Feather decision.
[59] I do not accept the applicants’ submission that the mere storage of some remaining parts and machinery originally owned by the late George Barrett who died in 1995 after his death but were still left unsold or undisposed of at the time of the sale of the Property in January 2007 to the applicants effectively maintained the legal nonconforming use of the secondary building of servicing, repairing and manufacturing of small engines.
[60] As indicated above, there was no actual or intended use of the building for manufacturing, repairs or servicing of engines since December 1995 other than at best the first seven months after that by Isobel and Maureen Barrett or by anyone else on their behalf until the property was sold in January 2007. Isobel and Maureen Barrett, as owners of the building and equipment, had no experience or ability themselves to carry on any such industrial use and had no intention to do so themselves or by anyone else.
[61] The Barrett family’s actual intention was to sell all of George Barrett’s equipment and machinery which they likely had inherited. They were successful in selling or giving away more than 60% of it. Significantly, they had sold the lathes and drill presses and other machinery and parts which were likely the ones of any significant use and value. What remained at the time of the sale of the property 2007 was their own personal, albeit industrial type property likely of no significant value or use for a small engines workshop.
[62] As indicated above, the storage of what remained of George’s machinery and equipment in the secondary building was only temporary until it was sold or disposed of and not so that it could potentially be used themselves as owners of the property or by anyone else to conduct small engine repairs therein.
[63] The fact situation in this case regarding a discontinuance of the legal nonconforming use in my view is similar to that in Re Thorman v. the City of Cambridge (1977) 1977 CanLII 1210 (ON SC), 18 O.R. (2d) 142 where Craig J confirmed that there was an intentional discontinuance of the use of the building as a butcher shop.
[64] In that case, the operation of the butcher shop by the husband and wife lessees stopped in January 1976 on the death of the husband. The surviving widow told their customers and the municipal tax department that it was closed because of his death. She then attempted to sell the butcher shop as a going concern. The butcher shop remained vacant until the date of the date of the hearing of the court application some 20 months later in November 1977. It had not been used for any purpose in the meantime and there was a suggestion that the refrigeration and meat equipment of the business had been removed.
[65] The 20-month non-use of the butcher shop on those facts was not a mere temporary interruption of that legal nonconforming use which Craig J held had been lost by reason of discontinuance.
[66] As noted in Haldimand Norfolk (Regional Municipality) v. Fagundes (2000) M.P.L.R. (3d) 1 (Ont. C.A.), in all the cases of vacancy where the court found that the use had continued despite the vacancy, there was some reasonable explanation for the vacancy or some circumstance at least partially outside the owner’s control that temporarily prevented the use and that if intention was determinative, the intention was at least an active intention consistent with the spirit of the provision.
[67] In Fagundes, the court confirmed at paragraph 17 that in order to establish continuance of the legal nonconforming use, there must be the intention to continue the use and the continuation of the actual use so far as it is possible in the circumstances.
[68] The applicants in my view have not established either.
[69] The court in Fagundes at paragraph 19 expressly held that a listing agreement suggesting that the property can be used for a legal nonconforming use is not sufficient evidence of an intention to use the property for the legal nonconforming use. The previous owners in Fagundes had listed the property as a “handyman’s special”.
[70] In my view, the Barretts’ advertising the secondary building as a workshop needing “TLC” in the listing agreement is really no different and, similar to the facts in Fagundes, perhaps they also thought someone else could then make use of the workshop and were unaware of the need for continuity of the prior use.
[71] The other legal decisions cited by the applicants in my view are distinguishable.
[72] Unlike this case, in O’Sullivan Funeral Homes Limited v. Sault Ste. Marie, 1961 CarswellOnt 105, there was a period of inactivity of use as a funeral parlour for only 11 months during repairs but a clear intention to continue using the building as a funeral parlour by the owner who was an undertaker after they were completed.
[73] In 572989 Ontario Inc. v. North York (City) Committee of Adjustments 1997 Carswell ONT 6250 (OMB), also unlike this case, there was a clear intention by the property owner to continue to use the parking lot and continued occasional use of the parking lot to the extent it could along with an explanation for the vacancy being outside the owner’s control.
[74] In this case, there was no intention at all at any time by the surviving family members of George Barrett of any actual use of the secondary building for servicing, repairs or manufacturing of small engines after George Barrett’s death in 1995. At its highest, there was some storage of some of George Barrett’s remaining machinery and equipment likely of no significant value or use that were now owned by Isobel and/or Maureen Barrett pending their sale or disposition which had not yet been completed by January 2007 when the property was sold to the applicants.
[75] However, the purpose of their storage was only meant to be temporary until they were sold or disposed of and had nothing to do with the potential or purpose of Isobel and Maureen Barrett or anyone else being able to use them as the late George Barrett had done until his death in 1995.
[76] The court in Feather made the distinction that although the owners lost the use of the cottage as a legal nonconforming use, they continued to enjoy the right to use the land generally for the docking of boats which had been enjoyed before the passing of the bylaw prohibiting it. The court held that only that right to use the land for the docking of boats could continue as a legal nonconforming use.
[77] However, in this case the temporary storage in that secondary building of the remaining equipment and parts of no established significant value or use previously owned by the late George Barrett by his widow and daughter pending its sale or other disposition was not related to or for the intended purpose of continuing the legal nonconforming use of the service, repair or manufacturing of small engines.
[78] The applicants rely on the Supreme Court of Canada decision in Saint-Romauld (Ville) v. Olivier, 2001 SCC 577 to suggest that the doctrine of acquired rights would give the applicants a right to continue using the premises in the same way they were used at the time the Township bylaw was passed in 1985 but also that they would enjoy a certain flexibility in the exercise of that right.
[79] However, that does not apply in this case as the actual use of the building by George Barrett and his surviving family members and friends for repair, servicing and manufacturing of small engines was discontinued with no intention to continue that use in in any way from 1995 and for almost 12 years before January 2007.
[80] The Applicants requested that the court admit and accept the evidence of Nicole Hanson, who stated she is an expert in the area of environmental planning, as relevant expert opinion evidence. Her opinion was that the secondary building on the Property was used as an industrial machine workshop at the time of the passage of the Township’s zoning bylaw in 1985 and including the parts storage area on the main floor was continuous since then until her site visit in September 2020.
[81] She opined that the secondary building “was still being used for purpose passively between 1995 (after George Barrett’s death) until the property was listed in 2006 and sold in 2007.” Her opinion and conclusion was that the legal nonconforming use of the secondary building continued to be used for the pre-existing purpose.
[82] Respondent’s counsel objected to the court hearing that opinion evidence as it was not necessary to assist the court and related to the ultimate issue I have to decide. However, as a precaution if it was admitted, he provided responding expert evidence of Carol Baker, while still maintaining his position that the court should not consider the evidence of either expert.
[83] Carol Baker is a professional planner with 15 years of progressive land-use planning experience in the public and private sector.
[84] Ms. Baker’s opinion was that the property’s legal nonconforming industrial use in the secondary building by George Barrett ceased in 1995 on his death and there was no continuous active industrial use after that for 12 years. The passive use for storage for some of George Barrett’s equipment during that time did not prevent the legal nonconforming industrial use being lost which in her opinion, it was.
[85] Expert opinion evidence is presumptively inadmissible. The party tendering the evidence must establish its admissibility on a balance of probabilities.
[86] Without considering at this time the issue of the experts being properly qualified to give their opinion, my main concern regarding the admissibility of the evidence of both experts is that I am not satisfied by the applicants that it is necessary to assist me in reaching my conclusion. Moreover, I did not find that opinion evidence to be helpful or might reasonably assist me in my necessary findings of the facts in this case.
[87] As I indicated at the outset, the facts in this case are not significantly in dispute. There is nothing technical about the evidence in this case which is simply that of lay witnesses of what actually happened regarding the actual and intended use of the Barrett Property in the secondary building after George Barrett’s death in 1995 until 2007.
[88] This case does not involve a matter where ordinary persons, including myself as the trier of fact, are unlikely to be able to form a correct judgment without the help of the opinions of Ms. Hanson and Ms. Baker. To be necessary, expert evidence must likely be outside the experience and knowledge of the trier of fact and be assessed in light of its potential to distort the fact-finding process.
[89] That is not the case here. There is no need for the witness opinion evidence confirming that George Barrett’s industrial use of the property was a legal nonconforming use until his death in 1995 as that has been admitted by the Township at the outset.
[90] What I have to do is review and assess the clear and non-technical evidence of the lay witnesses and determine whether that legal nonconforming use was continuous as a matter of fact and based on the applicable law at least until the sale of the property to the applicants in 2007.
[91] The expert opinions here are simply not necessary to allow me to understand and appreciate that straightforward evidence of the lay witnesses and its legal effect, and in particular that of Maureen Barrett, regarding the actual and intended use of the secondary building on the Property after her late father’s death until it was sold in 2007 so as to form a correct judgment. Mawhiney v. Norfolk County, 2020 ONSC 1928 at pp. 14-15.
[92] Accordingly, the opinion evidence of Ms. Hanson and Ms. Baker is not admissible, and I have not considered that evidence in rendering my decision.
[93] Lastly, the use of the building and land outside of the secondary building and on the premises by the applicants for their crane manufacturing and service business was a significant change in the use of the property and a change in the nature of the exercise that use and accordingly is not protected. The applicants’ activities of servicing and manufacturing large cranes on the property is not a mere intensification of an existing use or use of a different kind.
[94] Even had I ruled that the storage in that secondary building of some of the remaining equipment of the late George Barrett by his widow and daughter until January 2007 was a continuing legal nonconforming use, the applicant’s crane manufacturing and service business activities were a significant addition and change in the type of use that is too remote from this previous storage activity.
[95] I conclude that the industrial legal nonconforming use regarding the secondary building on the Property was not continuous after 1995 and was discontinued long before January 2007. The applicants’ operation of their crane manufacturing and service business on the Property is not a permitted use under the Township zoning bylaw and is not a legal nonconforming use under the Planning Act.
Restricting Legal Nonconforming Use in the Township Bylaw
[96] The applicants further submit that the six month period in the Township bylaw improperly narrows, amends and restricts the right of the applicants Harrison to a legal nonconforming use of the building and cannot operate to end that legal nonconforming use under section 34(9) of the Planning Act. It relies on TDL Group Corp, Re 2009 CarswellOnt 7336, 67 M.P.L.R. 455 that there is nothing in section 34(9)(a) of the Planning Act which allows for the extinguishment of the landowner’s right to a legal nonconforming use if repairs or renovations are not completed before the expiry of two years.
[97] The issue is in reality moot.
[98] The time period of discontinuance of the use in question is not six months or approximately six months. Rather, it is upwards of almost 12 years of non-use of the secondary building by the Barretts of repairs, servicing and manufacturing small engines prior to the sale of the property to the applicants in January 2007.
[99] The bylaw in this case does not fail to account for the intention of the Barretts’ regarding the use of the property from 1995 to 2007 after George Barrett’s death and is not inconsistent with section 34(9) of the Planning Act.
Implied Representation by the Township and Continuous Use
[100] The applicants state that the Township’s issuing of the Order to Comply to the applicants on January 30, 2018 to obtain a building permit by not mentioning a legal nonconforming use amounted to an implied representation that provided the building permits were applied for, the Township would regard the Harrison applicants nonconforming use of the building subject to other issues unrelated to legal nonconforming status.
[101] There is no merit to that position.
[102] The applicants can only rely on promissory estoppel if they establish a promise by the Township by words or conduct which intended to affect the legal relationship and on which the applicants relied by acting on or changing their position as a result of that. Murphy Oil Company v. Commercial Petroleum and Hydraulic Service Limited, 2005 O.J. No.38510; Forbes v. Caledon, above.
[103] In this case, the there is no evidence the Township made any promise to the applicants regarding their industrial use of the workshop was a legal nonconforming use. Moreover, there is no conduct of the Township intended to affect the legal relationship between it and the applicants and no evidence the applicants acted on or changed their position as a result of their receiving that stop work order.
[104] Unlike Forbes, noted in paragraph 77, there is no evidence that the applicants complied with any lawful order of the Township to their financial detriment in good faith and in reliance on the Township’s implied representation that this would constitute compliance with the bylaw.
Conclusion
[105] The application for a declaration of industrial legal nonconforming use of the secondary building located on lands purchased by the applicants in January 2007 municipally known as 1174 Brantford Highway, Cambridge in the Township of North Dumfries is dismissed.
[106] If the parties are unable to resolve the issue of costs, the defendants can make written submissions of no more than three pages in length together with a bill of costs within 15 days from the date of this decision.
[107] The applicants will similarly have the right to respond within 10 days thereafter.
[108] If no submissions are received during those timelines, the parties will be deemed to have resolved the issue of costs of this application.
The Honourable Justice R. J. Nightingale
Date: February 4, 2022
COURT FILE NO.: CV-19-00000259
DATE: 2022/02/04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Martin Harrison and Sheila Harrison
Applicants
AND:
The Corporation of the Township of North Dumfries and the Chief Building Official for the Corporation of the Township of North Dumfries
Respondents
REASONS FOR JUDGMENT
Nightingale, J.
Released: February 4, 2022