COURT FILE NO.: CV-22-832

DATE: 2024/02/22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Titan Recycling Inc.

Applicant

– and –

The Corporation of the City of Hamilton

Respondent

Steven O’Melia, Counsel for the Applicant

Kaush Parameswaran and Justine Ajandi, Counsel for the Respondent

HEARD: October 6, November 29 and 30, 2023

G. E. TAYLOR, J.

REASONS FOR JUDGMENT

Introduction

[1] Titan Recycling Inc. (“Titan”) seeks a declaration that its current use of property located at 140 Freelton Road, Hamilton (“the Property”) is a lawful non-conforming use pursuant to s. 34(9)(a) of the Planning Act.

[2] Titan purchased the Property in November 2020. The Property is currently being used for a Salvage Yard. The Property is currently zoned S2 Settlement Commercial which does not permit the operation of a Salvage Yard. Titan says that the Property has been used as a Salvage Yard since before the current by-law was passed. The City of Hamilton (“Hamilton”) agrees that at one point in time the Property was used as a Salvage Yard but says that such use was discontinued by Titan’s predecessor in title and therefore the non-conforming use exception does not apply.

Evidence on the Application

[3] The evidence on the application was by way of affidavits and transcripts of cross examinations. No viva voce evidence was presented.

[4] The parties are in agreement that the Property is located in an area of Hamilton which is zoned S2 Settlement Commercial and that a Salvage Yard is not permitted in an S2 Zone. It is also agreed that Titan is currently operating a Salvage Yard at the Property as that term is defined in the Hamilton Zoning By-law. Further, there is no dispute that the property was used for salvage purposes until 2007, that such use was not permitted by the by-law and therefore the salvage operation amounted to a legal non-conforming use.

[5] Rob Morris (“Morris”) is the president of Titan and a related corporation which holds title to the Property. Titan began operating in 2016 carrying out salvage and recycling of scrap steel, old appliances, cast-iron, auto cast, vehicle parts and other metals. Initially, Titan Recycling operated from a location in Dundas, Ontario subject to a Salvage Licence issued by Hamilton. In 2020, Titan was advised by its landlord that the lease of the Dundas property would not be renewed. Accordingly, Titan began searching for an alternate location from which to conduct its salvage business.

[6] In July 2020, Morris began discussions with Brad Braden (“Braden”), the owner of Park Model Living (“Park Model”), which owned the Property and operated a business from that location, about purchasing the Property.

[7] Morris said when he began discussions about purchasing the Property, he was aware that the Property had been used for salvage by Braden and his predecessors in title. When he visited the Property, he observed various trailers in a salvage state and salvage parts outdoors and in outbuilding and garage areas. He observed axles, siding, windows, appliances, tires, rims and other recreational vehicle components.

[8] Morris stated Braden explained that his business included purchasing end-of-life recreational vehicles and trailers for salvage in conjunction with his business of selling park model homes. Braden produced a number of zoning documents indicating that the property had been recognized as a Salvage Yard since at least 1955. In particular, Braden provided two Certificates of Zoning Verification and Property Reports issued by Hamilton, one dated August 12, 2015, and one dated December 13, 2018. Both Certificates contained the following wording:

Building Division records indicate that the recognized use is an Automotive Salvage Yard and Automotive Sales which is legally established non-conforming provided that it has continuously existed since prior to November 5, 1990.

The Building Services Division makes no representation and gives no warrant or opinion as to whether the non-conforming use has been lost by discontinuance of use. The Applicant should make appropriate inquiries to satisfy himself that the non-confirming use has not been lost by discontinuance.

[9] Braden also produced a number of printed advertisements stating that the business included salvage operations.

[10] On August 13, 2020, Titan entered into an agreement to purchase the Property subject to a 20-day due diligence period. Morris contacted Hamilton and was advised to complete a Zoning Verification/Property Report Application. On August 20, 2020, Morris received two Zoning Verification Certificates and Property Reports from Hamilton, both of which contained the following wording which is virtually identical to the wording in the Certificates dated August 12, 2015, and December 13, 2018:

Building Division records indicate that the recognized use is an automotive salvage yard with automobile sales which is legally established non-conforming provided that it has continuously existed since prior to November 5, 1990, until present.

The Building Division makes no representation and gives no warranty or opinion as to whether the non-conforming use has been lost by discontinuance of use. The Applicant should make appropriate inquiries to satisfy themselves that the non-conforming use has not been lost by discontinuance.

[11] On August 20, 2020, Morris made application to Hamilton for a salvage license for the Property. On September 1, 2020, Patrizia Milligan, Licensing Administrator for Hamilton confirmed that, subject to obtaining approval of the Fire Department, a license for the use of the Property as a Salvage Yard would be issued.

[12] The purchase of the Property was completed on November 3, 2020, at which time Titan took possession. In January 2021, the required approval of the Fire Department was obtained. On January 21, 2021, after payment of the appropriate fee, Hamilton issued a Salvage Yard Licence to Titan for the Property. Titan began salvage operations in early 2021.

[13] Morris stated in his affidavit that on September 17, 2021, without prior notice, Titan received a Notice of Requirement of Zoning Compliance Review from Hamilton. The Notice quoted the wording from the Certificates of Zoning Verification set out at paragraph 10 above with underling added. The Notice stated that Titan was required to establish, within 30 days, that the legal non-conforming use of the Property as a Salvage Yard had not been lost by discontinuance.

[14] On November 16, 2021, Titan received an email from Joseph Sanseverino, Zoning Correlator for Hamilton in which he purported to elaborate on the findings of the Zoning Compliance Review. He stated that until 2007 the Property was used as an automotive salvage yard with automotive sales. After 2007, the automotive salvage yard component ceased. He stated that the pre-2007 salvage activities were limited to automobiles to complement the automobile sales component of the land use. However, since 2007 the business carried on at the Property was Major Recreation Vehicle Sales and Service “with some degree of salvaging activities occurring on site, however, such a use was never permitted on the lands in the current or previous Zoning Bylaws…” He stated that the salvage operations which were carried on after 2007 were not a continuation of the previous automotive salvage yard because they were not limited to automobiles only. He concluded by stating that automotive salvage operations ceased in 2007 and that the intended Salvage Yard use by Titan would be considered a deviation in continuity from the previous automotive salvage yard.

[15] The present application was commenced following an attendance before the Licensing Tribunal for Hamilton which issued a temporary Salvage Yard License on the condition that Titan seek a declaration that its use of the Property was a legal non-conforming use.

[16] Braden deposed in an affidavit that Park Model purchased the Property in November 2007 from Freelton Auto & Truck, Parts and Equipment Company Limited (“Freelton Auto”). Prior to the purchase he was aware that the Property had been used for many years for salvage operations. He said that was an important consideration and he continued to use the Property for salvage operations until he sold it to Titan.

[17] Braden stated that throughout the period of ownership of the Property by his company, it was used for the storage, sale, service, and salvage of new and used trailers. He said such use was consistent throughout the period of his ownership. He explained that when selling new trailers, he frequently received trade-ins. Many were not suitable for resale, and it was necessary to salvage and scrap these trailers. Salvage operations included stripping metal and other resalable products from the trade-in trailers and the subsequent disposal of the salvaged items. He said the salvage portion of his business was at least 10% of the overall operation. He said that although the use of the Property fluctuated the portion occupied by trailers for salvage was as high as 40%.

[18] Braden said that throughout his ownership of the property, he advertised the salvage component of the business. He produced two print advertisements to that effect. He said the salvage of used trailers was an important part of his business of selling new trailers.

[19] Braden acknowledged in his affidavit that his salvage operation was not identical to that of the previous owner but there were similarities such as both salvaged and sold parts from vehicles. He salvaged and sold axels, siding, wiring and other parts and the remainder of the used trailers were scraped.

[20] Braden stated that when he purchased the Property, he made inquiries and was told by Hamilton staff that his proposed use of the Property was lawful, and he did not require a Salvage Licence. Inspectors from Hamilton regularly attended at the Property and at no time was it suggested that the use of the Property violated any by-law although it would have been obvious to the inspectors that he was engaged in salvage operations.

[21] Titan submitted the affidavit of Robert Pasuta (“Pasuta”), a former Hamilton Ward Councillor from 2006 to 2018 for the ward in which the Property is located. From personal observation he stated that the Property was used as a Salvage Yard throughout the time he was a Hamilton councillor. He observed the dismantling of trailers and the salvaging of axles, aluminum and other metals.

[22] Hamilton responded to Titan’s Application with the affidavit of Emily Coe (“Coe”), the Supervisor of Zoning for Hamilton since 2014.

[23] Coe stated that Hamilton encourages prospective purchasers of property to verify the zoning of such property prior to purchase. That verification may be pursuant to a Zoning Verification/Property Report Application which results in a report advising of the last recognized use of the property and if the proposed use of the property is permitted pursuant to the zoning by-law or if the proposed use is conditionally permitted pursuant to any previously established legal non-conforming use. Alternatively, the prospective purchaser may make a Zoning Compliance Review Application which, after a comprehensive search, provides the purchaser with comments about whether the proposed use of the property is legal non-confirming.

[24] Coe acknowledged that Hamilton issued a Certificate of Zoning Verification and Property Report to Titan dated August 20, 2020, which stated that the recognized use of the property was an automotive salvage yard with automobile sales which was a legal non-conforming use.

[25] Coe stated in her affidavit that Titan submitted a Zoning Compliance Review Application dated October 25, 2021. Hamilton responded to this Application on November 9, 2021, stating:

The submitted evidence does not demonstrate that a salvage yard has continuously existed from prior to the passing of the West Flamborough Zoning By-law passed on November 23, 1964, until present date. As such, the use of a salvage yard is not deemed to be legally established non-conforming at this location.

and,

It should be noted that past records indicate the use of an automobile salvage yard with automobile repair and sales at this location. However, such operations have not functioned at this location since September 27, 2007. Furthermore, the previous salvage yard operation was accessory to an automobile repair and sales establishment only. Not for the general purpose of a salvage [sic] which is includes [sic] …

[26] Titan submitted a further Zoning Compliance Review Application dated August 22, 2022. Coe responded to this Application on September 15, 2022. That response stated the following:

In summary, there is not sufficient evidence to demonstrate that a Salvage Yard has existed continuously from prior to November 23, 1964. It appears that any legally established nonconforming status that a Salvage Yard may have held at this property has been lost through discontinuance in 2008, when the last Salvage Yard licence expired.

[27] In coming to the conclusion that she did, Coe considered past licences issued for the Property, Google Street View images of the Property taken from both the front and back of the Property between August 2011 and August 2019, which she retrieved in September 2022, and aerial photographs from Hamilton’s records. Coe found that any use of the Property as a Salvage Yard was discontinued in or about November 2008 or earlier. Coe’s ultimate conclusion was that the available information did not support that a Salvage Yard had existed on the Property continuously from prior to November 23, 1964, and as such, any legal non-confirming use of the Property as a Salvage Yard had been lost through discontinuance.

[28] Dan Campbell (“Campbell”), a Licensing Compliance Officer for Hamilton submitted an affidavit stating that he had been employed in Hamilton’s Licensing and By-Law Department since February 2021 and had been a Compliance Officer since March 2022. Based on a file review he stated that the Property was licenced as a Public Garage with new and used motor vehicle sales and motor repair from September 2007 to April 2020 and that on January 21, 2020, it was licenced as a Salvage Yard.

[29] Campbell stated that no business licences were issued to Braden or Park Model. He also stated that Hamilton licencing staff “would not have advised him [Braden] that he did not require a business license or a salvage license to operate”. No Salvage Yard licences were issued for the Property from 2007 to January 21, 2021.

[30] Campbell deposed that starting early in 2021, Hamilton began receiving complaints about Titan operating a Salvage Yard at the Property. Copies of the records of complaints attached to Campbell’s affidavit indicate that the first complaint was noted in March 2021 with four more complaints registered in June (two complaints), November and December and a final complaint in August 2022. The complaints generally were about noise, mud and increased truck traffic.

[31] Campbell attended in the vicinity of the Property between September 12 and 30, 2022 on ten occasions. He observed large trucks backing into the Property, at times blocking the road for several minutes, large plumes of dust blowing from the Property, and he heard banging of metal from scrap being moved on the Property. While visiting the Property, Campbell was approached by four area residents who complained to him about noise and dust disturbing the enjoyment of their properties.

[32] Brian Didiodato stated in an affidavit that he has resided at 127 Freelton Road, which is on the opposite corner from the Property, since October 2020. He said from early 2021 he began to experience noise and vibrations emanating from the Property. There was dust covering the street and there was increased truck traffic. The noise has not been limited to business hours. Because of the noise and dust, he must keep the windows and doors closed at all times.

[33] In cross examination, Morris stated that Braden left a folder of documents on his desk which Morris reviewed. The documents included past licences for the Property and advertisements. He spoke to Safeway Towing which had historically transported material to and from the Property. He also identified areas of the Property where he observed salvage material before the Property was purchased. He said Braden had told him that he had operated a Salvage Yard since he purchased the Property in 2007.

[34] Morris stated that he pursued the Zoning Verification Application which he thought was Hamilton’s opportunity to point out any concerns with the zoning. He said he was satisfied that the use of the Property as a Salvage Yard was completely legal and if Hamilton had said anything to the contrary Titan would not have purchased the Property.

[35] Morris stated that Titan began salvage operation as soon as the licence was issued in January 2021. He confirmed that the salvage being carried out at the Property is essentially the same as was carried out at the previous Titan yard but with slightly less equipment due to the smaller size of the yard.

[36] When Braden was cross examined, he said he saw an active salvage yard at the Property before he bought it. He confirmed that he purchased the Property in November 2007. He was shown three Certificates of Zoning Verification and Property Reports dated August 17, October 16 and 19, 2007, two of which listed the proposed use as: Retail RV, Small Engine Sales and Repairs” and the third referred to “RV Repairs”. The Certificates dated October 16 and 19 also stated that the “recognized use is automotive salvage yard”.

[37] Braden testified in cross examination that he did not immediately begin to operate his business from the Property because he was still operating from leased property. He said it was a year or two after the purchase closed before he began fully operating his business from the Property. He was operating from both locations. He re-landscaped the Property and accepted trade-ins. He said the trade-ins that came in were salvaged. He described the salvage equipment in use from 2007 to 2020 as being a Case loader, a tow truck and two Bobcats.

[38] Braden acknowledged that he never obtained a business licence for the Property.

[39] Braden was shown an aerial photograph of the Property from 2010. He said he recognized the photograph as being of the Property but said it was not accurate because it did not show any inventory. He identified three trailers with white roofs which he said were salvage. He said the salvage operation was carried out on the Mill Street side of the Property. He said the building with the black roof was where the junk was stored.

[40] In cross examination, Pasuta stated that he only entered the Property on one occasion after it was purchased by Braden in 2007. His observations about the Property being used as a Salvage Yard were made while he was driving along Highway 6. He said one day he would see a used trailer at the back of the Property near Highway 6 and then a few days later he would see the sides removed and metal piled on the side.

[41] In cross examination Coe was asked questions about the Certificate of Zoning Verification and Property Report issued by Hamilton dated August 20, 2020. She said that it was the responsibility of the applicant to make appropriate inquiries to determine if the non-conforming use had been discontinued. She refused to answer questions about what further inquiries she felt Titan could have made to satisfy itself that the legal non-conforming use had not been discontinued.

[42] Coe acknowledged that the activity described by Braden in his affidavit that he conducted on the property would fall within Hamilton’s definition of a Salvage Yard. She also agreed that Braden would be the person with the most direct knowledge of what activities were taking place on the Property.

[43] Coe agreed that it is not possible from viewing the Google Street View and the aerial photographs to identify which of the trailers were new and which may have been in the process of being dismantled.

[44] Coe agreed with the suggestion that a legal non-conforming use does not have to be identical over time. The use must meet the definition of legal non-conforming.

Discussion and Analysis

[45] The issues to be decided may be summarized as follows:

1. When Titan purchased the Property, was a Salvage Yard a legal non-conforming use?

2. If a Salvage Yard was a legal non-conforming use of the Property when Titan purchased the Property, is Titan’s current use of the Property entitled to protection as a legal non-confirming use?

[46] The Planning Act states:

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

(a) to prevent the use of any land, building or structure for any purpose prohibited by the by-law if such land, building or structure was lawfully used for such purpose on the day of the passing of the by-law, so long as it continues to be used for that purpose;

[47] Hamilton’s definition of a Salvage Yard in its Zoning By-law is as follows:

Salvage Yard shall mean the use of the land, building or structure, or part thereof, for storing, wrecking, dismantling, processing, recycling and selling used goods, wares, materials and which may include, but not be limited to household items, clothing, furniture, paper, bottles, building materials, scrap metal, machinery, heavy equipment or parts thereof, and shall include but not be limited to a Motor Vehicle Wrecking Establishment. A Salvage Yard shall not include a Waste Management Facility. (By-law No. 10-128, May 26, 2010)

[48] In multiple Certificates of Zoning Verification and Property Reports, the use of the Property has been described as “an automotive salvage yard with automotive sales”. There is no definition in Hamilton’s Zoning By-law for an “automotive salvage yard”. Coe agreed in cross examination that the use of the property as described by Braden in his affidavit would fit within Hamilton’s definition of Salvage Yard. I therefore conclude that the inquiry is as to whether Braden’s Park Model business was Salvage Yard as opposed to an Automotive Salvage Yard.

[49] Hamilton concedes that until 2007, when the Property was purchased by Park Model, a Salvage Yard was being operated on the Property and was a legal non-conforming use. The onus is on Titan to prove on a balance of probabilities, that Braden and Park Model continued to operate a Salvage Yard continuously until the sale to Titan in 2020 (Forbes v. Caledon, 2021 ONSC 1442 para 8).

[50] Braden’s evidence is that he carried out salvage in relation to his business as a seller of park model trailers throughout the period of his ownership of the Property. His business involved taking used trailers from trailer parks when he sold new park model trailers. He said he would bring the used trailers to the Property and dismantle them. Although salvage was not the main component of his business, it was an important aspect of it. Braden advertised the salvage portion of Park Model’s business.

[51] Pasuta, the former Hamilton councillor, testified that he was aware the Property was used for salvage throughout the period of Braden’ ownership.

[52] Hamilton issued several Confirmations between 2007 and 2020 that the Property was used as an automotive salvage yard as a legal non-conforming use. This would suggest that Hamilton employees thought the Property continued to be used as a Salvage Yard.

[53] Morris described the steps he took prior to purchase to confirm that the Property continued to be used as a Salvage Yard as a legal non-conforming use. Coe gave evidence of the two methods a prospective purchaser of property could follow to confirm the continued existence of a non-conforming use. Morris employed one of those methods. Based on the application by Titan, Hamilton issued a Certificate of Zoning Verification and Property Report stating the records indicated that the recognized use of the Property as an “Automotive Salvage Yard”. Morris gave evidence that if Hamilton had raised any concerns with him during the course of the Zoning Verification Application, Titan would not have purchased the Property.

[54] When asked if there was anything else Titan could have done to confirm the continued non-conforming use, Coe refused to answer. Titan was issued a Salvage Licence in January 2021. From this I conclude that, based on Titan’s application, Hamilton was satisfied that the legal non-conforming use of the Property as a Salvage Yard continued until January 2021.

[55] Coe relied on Google Street View and aerial photographs to conclude that Titan had not provided evidence that the legal non-conforming use continued until it purchased the Property in November 2020. However, in cross examination, she acknowledged that it was not possible, from the photographs, to identify which of the trailers were new and which may have been in the process of being dismantled. Braden, on the other hand, pointed out on a photograph from 2010, trailers which were salvage and where the salvage operation took place.

[56] In my view, Braden’s evidence that salvage operations were conducted throughout his period of ownership was not shaken on cross examination. Hamilton’s issuance of Certificates confirming that salvage was an ongoing use of the Property and the issuance of the Salvage Yard Licence to Titan in January 2021 are all evidence supporting the conclusion that Titan has established, on a balance of probabilities that the Property was continuously used as a Salvage Yard from November 2007 to November 2020.

[57] I therefore find that the Property was used as a Salvage Yard continuously from 2007 to when Titan purchased the Property and that such use was legal non-conforming. I now turn to whether Titan’s present use of the Property is a legal non-conforming use.

[58] In Central Jewish Institute v. Toronto, 1948 CanLII 3 (SCC), [1948] S.C.R. 101, the Court held that the expansion of a legal non-conforming use from one part of the building to the entire building was permitted. The Court held that it was the building to which the exemption applied, not merely the part of the building being used in a non-conforming way when the by-law was passed. Similarly, it seems to me that the legal non-conforming use as a Salvage Yard applied to the entire Property, not just the part used for salvage purposes.

[59] In Saint-Romuald v. Olivier, 2001 SCC 57, [2001] 2 S.C.R. 898, the Court found that a nightclub featuring country and western music and was a legal non-conforming use could be converted into an establishment featuring exotic dancers without the loss of the legal non-conforming use. The Court held that substitution of nude dancers for western singers was not such an extreme variation in the nightclub formula as to constitute a wholly different use. A distinction was drawn between the type of legal non-conforming use and the intensity of such use. In the present case, I accept that the Salvage Yard being operated by Titan is more intense that what was being operated by Park Model, but the Property is still being used for a Salvage Yard.

[60] The Court in Saint-Romuald left open the possibility that intensification of a pre-existing activity may be of such a degree to amount to a difference in kind. The example of a family farm with a few pigs on the fringe of a town, being transformed into a factory of intensive pig husbandry was suggested to be an intensification had become a completely different use. On this issue the Court held that evidence of community impact can be important.

[61] It is significant, in my view, that Hamilton was aware of the business carried out by Titan before it purchased the Property because Titan’s operation of a Salvage Yard at its previous location was licensed. Knowing the nature of Titan’s business, Hamilton issued the Salvage Yard Licence for the Property in January 2021. That indicates that Hamilton, knowing the nature of Titan’s salvage operation, considered it to be an appropriate use of the Property.

[62] There is evidence that Titan’s use of the Property as a Salvage Yard has caused disruption in the neighbourhood. There is evidence of excessive noise, traffic and dust. I have considered this evidence, but I do not find that it establishes a general negative impact to the community which should not be permitted to continue. This is particularly significant in this case where, as stated above, Hamilton had knowledge of the type of operation carried out by Titan approved the use of the Property as a Salvage Yard before it was purchased.

Conclusion

[63] For these reasons, there will be a declaration that:

a) the use being carried out by the Titan Recycling Inc. at 140 Freelton Road, Hamilton falls within the definition of “Salvage Yard” under the City of Hamilton’s Zoning By-law No. 10-128, enacted on May 26, 2010; and

b) that a Salvage Yard use has been carried out on the Property since before the enactment of the applicable zoning by-law, and therefore has lawful non-conforming status pursuant to subsection 34(9) of the Planning Act.

[64] The parties are encouraged to resolve the issue of costs. If costs are not resolved, the parties may make written submission as to costs. Written submissions are to be limited to three pages exclusive of a Bill of Costs and Costs Outline and are to be filed electronically on Caselines and delivered electronically to my attention to mona.goodwin@ontario.ca and Kitchener.SCJJA@ontario.ca. Titan’s submissions are to be submitted within 20 days of the release of the Reasons. Hamilton’s submissions are to be submitted within 40 days of the release of these Reasons. If written submissions are not field within 45 days of the release of these Reasons, it will be assumed that the issue of costs has been resolved.

G.E. Taylor, J.

Released: February 22, 2024

COURT FILE NO.: CV-22-832

DATE: 2024/02/22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Titan Recycling Inc.

Applicant

– and –

The Corporation of the City of Hamilton

Respondent

REASONS FOR JUDGMENT

G.E. Taylor, J.

Released: February 22, 2024