Court File and Parties

COURT FILE NO.: CV 22-3317 DATE: 2024-01-17 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 2708959 ONTARIO INC., Applicant AND: THE CORPORATION OF THE CITY OF STRATFORD, Respondent

BEFORE: Justice Scott K. Campbell

COUNSEL: Alan B. Dryer, Counsel for the Applicant Paula Lombardi, Counsel for the Respondent

HEARD: November 15, 2023

Endorsement

Introduction

[1] The applicant corporation, 2708959 Ontario Inc. (“the applicant”), commenced this application seeking various forms of relief related to a building constructed on property known as 7 Cobourg Street in Stratford, Ontario. The applicant concedes that parts of the building encroached onto a road allowance belonging to the respondent municipality, the City of Stratford (“the respondent”). The applicant seeks relief with respect to;

a. an existing concrete retaining wall surrounding the raised gardens, b. an existing wooden access ramp to the side entrance of the building, c. an existing concrete step at the bottom of the access ramp, and d. a single-car parking space.

[2] The applicant raised several arguments in support of the relief claimed. The respondent disputes the applicant’s claim and takes the position that the encroachments cannot continue unless the applicant enters into an encroachment agreement on terms satisfactory to the respondent.

Background

[3] The applicant is a company incorporated pursuant to the laws of Ontario. It is the registered owner of property at 7 Cobourg Street in Stratford, Ontario (“the property”). Robert Lemon is the president and the director of the applicant. Mr. Lemon is also the owner of 9 Cobourg Street immediately to the east of the subject property. Both properties are situated on the south side of Cobourg Street, just east of its intersection with Erie Street.

[4] The respondent is a Single Tier municipal corporation pursuant to the Municipal Act, 2001, S.O. 2001, c. 25 (“Municipal Act”) in the County of Perth. Tatiana Dafoe was the City Clerk for Stratford and Jonathan DeWeerd was the Chief Building Official for Stratford at all material times. Shim-Sutcliffe Architects (“Shim-Sutcliffe”) were the project architects for the construction of the building.

[5] The building constructed at 7 Cobourg Street is said to be an architecturally significant three-storey structure known as the “Tower House” or the “Morris Tower House”. It was constructed between 1998 and 2001 by the applicant’s predecessors in title. It currently is occupied and is used as part of a boutique inn. It is connected to 9 Cobourg Street by a walkway.

[6] The application concerns the four exterior structures noted above which are all installed at the front of the property and encroach on the respondent’s road allowance adjacent to the sidewalk. Attached to this decision as Schedule A is a sketch which was attached as Schedule 1A to the site plan agreement registered at the time of construction of the building at 7 Cobourg Street. Highlighted in blue are the limits of the property known as 9 Cobourg Street. Highlighted in pink are the limits of the property known as 7 Cobourg Street. Highlighted in yellow are the words “property line” found in three places on the site plan sketch. Those words are along the east, west and south boundary of the property known municipally as 9 Cobourg Street.

[7] On the sketch I have highlighted in orange the three encroachments and the labels which apparently refer to them that are visible on the site plan. The most westerly encroachment is the “residence entry stairs/ramp”. The most easterly is identified as a “sloped bank ground cover”. In between those two encroachments is an area labelled “garage ramp-ped ramp”. The concrete step at the bottom of the ramp is not shown on the sketch, but can be seen on a plan of survey prepared by Archibald Grey and McKay Ltd. on September 6, 2019 (Exhibit C to applicant’s affidavit sworn September 16, 2022). It is sometimes referred to as a block of red granite.

[8] At the time the property was constructed, the owner of 7 Cobourg Street was James Morris. Mr. Morris entered into a site plan agreement with the respondent on March 23, 1998. The site plan agreement included provisions that Mr. Morris would provide the respondent at the time of execution of the agreement, with a site plan prepared by a registered Ontario land surveyor. The site plan was to show:

a. the boundaries and dimensions of the land, b. the location and dimensions of all buildings existing on the lands, and c. the location and dimension of all buildings, structures and all free-standing signs proposed on the site land.

[9] A number of drawings, including directional elevations, was attached to the site plan agreement. From my review of the directional elevation sketches I can find no specific reference to the boundary lines of the property.

[10] Paragraph 23 of the agreement provided that:

a. the agreement would not be effective to reduce or mitigate any restrictions or regulations lawfully imposed by the city, or any other government authority, b. nothing in the agreement constituted a waiver of the obligation by the owner to comply with zoning bylaw or any other bylaws of the city, and c. where the provision of the agreement conflicts with any other regulation the provision that establishes the higher or more restrictive standard was to prevail.

The agreement was stated to inure to the benefit of and be binding upon all parties and their respective heirs, executors, administrators, successors and assigns.

[11] The project proceeded after the site plan agreement was executed. There was correspondence exchanged between the respondent and Shim-Sutcliffe with respect to the plans. On October 23, 1998, the respondent’s building department approved the drawings. Attached as Exhibit I to the affidavit of Robert Lemon, sworn September 16th is a copy of the drawings with the city’s approval stamp affixed to each drawing. That stamp states as follows:

City of Stratford Dept. of Planning Inspection and Property management Services. These plans and specifications are hereby approved subject to the changes as noted. It shall be unlawful to erase or modify these plans and specifications without first obtaining the written permission of the inspectors of buildings. These plans and specifications must be kept on the work and available at all times to the inspector of buildings. This permit does not guarantee that any licence, permit or other authority to use the premises will be given.

[12] Mr. Lemon deposed, in his affidavit sworn September 16, 2022, that drawing 1A of the building permit drawings, as prepared by Shim-Sutcliffe and approved by the respondent, depicts the encroachments that are subject matter of this application. He noted in particular drawing A7 of the building permit drawings relates to the west elevation and depicts the access ramp that is in conformity to the encroaching structures.

[13] The respondent issued an occupancy permit on October 1, 2001. It certified the buildings and lands were being used in accordance with the zoning bylaw and the buildings were constructed in accordance with zoning and building laws.

[14] Mr. Lemon, through the applicant corporation, acquired the property on August 1, 2019. Thereafter, Mr. Lemon began a renovation to the interior of the building. That work is not related to the issues before the Court.

[15] At the time the applicant purchased the property, he obtained from the respondent a letter dated May 10, 2019. That letter indicated that the respondent’s records did not indicate any outstanding work orders against the property.

[16] In October 2021, the applicant applied to the respondent seeking to re-zone the property so that the existing 3C zoning designation could be expanded. The applicant sought to use the property as a single-family dwelling. During the course of the review of the applicant’s re-zoning application in the fall of 2021, the respondent advised the applicant that the existing single-car parking spot at the front of the building, which has been used for that purpose since the building was constructed was not a legally permitted parking space. The reason given was that the parking space, which is the driveway of the building, is partially situated on the road allowance of Cobourg Street. The respondent’s staff advised the applicant that the parking space required an approved encroachment agreement.

[17] In the course of discussions between the applicant and the respondent with respect to the re-zoning application for the parking space, the respondent advised that an encroachment agreement was required for all encroaching structures, not just the parking space. The applicant was referred to the respondent’s encroachment policy P.3.2, in force since March 26, 2006. The relevant provision of the encroachment policy states, “[w]here an encroachment exists without city approval the owner shall be required to remove the encroachment at his/her own expense or seek permission from the city for the encroachment to remain”: see Exhibit Q to the affidavit of Tatiana Dafoe, sworn February 1, 2023.

[18] Mr. Lemon deposed, and it is not controversial, that after discussions between the applicant and the respondent’s staff, the respondent offered the applicant an encroachment agreement. After discussions with the respondent, the applicant was not prepared to agree to certain terms of the proposed encroachment agreement in relation to the structures other than the parking space. The applicant raised concerns about the provisions of the agreement that would allow the respondent to terminate the applicant’s rights or to refuse to continue them upon expiration of the encroachment agreement.

[19] The applicant then began to enquire into the history of the approval and construction of the buildings. He learned that the Certificate of Occupancy and Compliance was issued by the respondent on October 1, 2001. He also sought and obtained copies of the original Shim-Sutcliffe building permit drawings.

[20] It is Mr. Lemon’s evidence that the encroachments were approved by the applicant. It is his view that the Schedule 1A to the cite plan agreement depicts:

a. the sloped bank ground cover which was subsequently constructed in conformity to and which corresponds to the structure now described as the concrete planter, b. the residence entry stair ramp which was constructed in conformity to the plan and corresponds to encroaching structures referred to as the access ramp and granite step, and c. the garage ramp with a slope down which was subsequently constructed to conform to the plans and corresponds to the encroaching structure described as the garage ramp parking space.

[21] On December 8, 2021, the respondent’s building department confirmed that the current use of the property as an inn did not require a parking space. The respondent clarified that if the property is re-zoned to a dwelling unit, it would need to be demonstrated that, as it relates to the provisions of parking, an encroachment agreement allows the parking space to be situated on the respondent’s road allowance. The respondent also clarified the requirements for parking if the use of 7 Coburg Street was changed to a dwelling unit.

[22] On February 28, 2022, Stratford city council (“council”) passed a bylaw allowing the encroachment agreement for 7 Cobourg Street. However, the respondent acknowledges that subsequent discussions with counsel for Mr. Lemon did not result in the execution of an agreement.

[23] Mr. Lemon requested that the respondent reconsider its decision to require an encroachment agreement. The respondent declined to reconsider its decision. There were subsequent communication and discussions between the parties. Unfortunately, they did not lead to any resolutions.

[24] On May 9, 2022, council adopted a bylaw to amend the bylaw to implement the site-specific zoning bylaw amendment for the Cobourg Street properties providing for:

a. the provision of zero parking spaces for 7 Cobourg Street, and b. the provision of one parking space for 9 Cobourg Street.

[25] Brigitte Shim, Principal of Shim-Sutcliffe, filed an affidavit in this proceeding. In her affidavit, dated May 17, 2023, she stated that the encroaching structures were part of the building’s original design, and the structures were constructed and permitted by the respondent. The encroaching structures and the fact they encroach beyond the front boundary line of the property onto the road allowance are, in her opinion, plainly visible on the site plan and building permit drawings as stamped and approved by the respondent. She stated they would have been plainly visible at the property from the time the home was constructed.

[26] Ms. Shim also stated in her affidavit that the encroaching structures are integral to the design and functioning of the house. However, Ms. Shim acknowledged that only their client, James Morris, and not Shim-Sutcliffe, was in direct communication with the respondent during the design and construction of the building.

Position of the Applicant

[27] The applicant argues that their position is supported by s. 34(9) of the Planning Act, R.S.O. 1990, c. P.13 (“Planning Act”), and the respondent’s own bylaws. The applicant further argues that it did not apply to change the use of the property from an inn to a dwelling. Rather, it was seeking to add dwelling to the permitted uses while continuing to carry on the existing permitted use of an inn.

[28] Mr. DeWeerd, the respondent’s chief building officer, agreed that the Certificate of Occupancy issued by the respondent on October 1, 2001, is valid. It was signed on behalf of the respondent and certified compliance with the zoning and building bylaws. He further admitted under cross-examination that all four encroachments are plainly visible to anyone walking by the property and a city official would have no difficulty identifying the broken line on the drawings that denotes the property line. He acknowledged that it is clear from the drawings that the access ramp extends over the property line, the rectangle at the base of the ramp is in the same position as the granite step. It is also clear that the garage ramp parking space as depicted encroaches and the sloped bank ground cover is in the same position as the concrete planter.

[29] On this evidence, the applicant argues that the construction of the encroachments was authorized by the respondent. The site plan and building permit drawings were approved by the respondent prior to the construction of the Tower House and contrary to the respondent’s position that those drawings identify the property line, road allowance and setbacks. Any city official reviewing the drawings would have, and ought to have, easily concluded that the installation between the northerly front property line of 7 Cobourg Street and the sidewalk encroach on city property or road allowance. That is, these encroachments are plainly visible. Similarly, the letter received by the respondent prior to purchasing the property supports the argument that the use was authorized.

[30] With respect to the ramp, the applicant argues the ramp as constructed is necessary to the building’s function as it provided the only means to access to the front door. In cross-examination, Mr. DeWeerd acknowledged that the ramp is used for access to the front door of the building, and that the granite step at the foot of the ramp is a step to the ramp and has been there since the building was built.

[31] Mr. DeWeerd also acknowledged the concrete planter has been there since the building was built. The applicant argues that this admission and the above admissions that the ramp and granite step have existed since construction support the applicant’s position.

[32] According to the applicant’s factum, the above evidence demonstrates the encroaching structures existed prior to March 26, 2006, the effective date of the respondent’s encroachment policy with express council approval. Therefore, the encroachments are “grandfathered” – they are not covered by the encroachment policy and expressly excluded from the operation of the same.

[33] The bylaw enacting the policy with respect to encroachment agreements was passed on March 27, 2006. That is subsequent to the construction of the Tower House. Therefore, according to the applicant, the respondent’s bylaw cannot apply to prevent the continuing installation of the encroachments which were expressly permitted and constructed in accordance with the building permit drawings and site plan.

[34] With respect to the issue of estoppel, the applicant argued that the respondent, by declaration, act or omission has intentionally caused or permitted the applicant to believe something to be true and to act upon that belief. Therefore, neither the respondent or their representatives may be allowed in any suit or proceeding to deny the truth of the thing. At its heart, estoppel relates to one party, by words or conduct, making representation that was intended to affect the legal relations between them and another and to act accordingly. The party who makes the representation may not revert to the previous legal relation as if no such representation has been made.

[35] In this instance, the respondent approved the site plan drawings and building permit drawings. It inspected the premises and issued a Certificate of Occupancy on October 1, 2001. More recently, in its letter of May 10, 2019, the respondent confirmed city records indicate there were no outstanding work orders against the property. According to the applicant, the respondent’s failure to issue work orders to the previous owner after completion of the construction of the building for plainly visible encroachments amounts to tacit approval through silence.

[36] Counsel submitted the Supreme Court of Canada decision in Kenora Town Hydro Electric Commission v. Vacation Land Dairy Cooperative Ltd., [1994] 1 S.C.R. 80, supports the applicant’s position. In that case, the issue was whether Ontario utilities legislation precluded raising estoppel. The majority held that a statute could only bar the defence of estoppel or change of position where there exists a clear positive duty which is incompatible to the operation of law. The applicant argues that exception is not present here.

[37] Counsel also submitted there is legal authority for the proposition that a municipal corporation may be bound by estoppel and acquiescence. The doctrine of estoppel does not apply where the question relates to actions by council and its legislative capacity, but does apply where the act is administrative.

[38] In this matter, estoppel is available to the applicant because there is no clear positive duty of the respondent municipality which is incompatible with the operation of the principles of estoppel. Nothing in the encroachment policy excludes estoppel and the enforcement of the encroachment policy is an administrative act, not legislative deliberation.

Position of the Respondent

[39] The respondent argues that road allowances are classified as municipally owned lands pursuant to s. 26 of the Municipal Act. Municipalities have sole jurisdiction and responsibility for road allowances. The respondent, as a municipality, has the ability to regulate public street road allowances. In Oro-Medonte (Township) v. Warkentin, 2013 ONSC 1416, 30 R.P.R. (5th) 44 (“Warkentin”), Howden J. held the preservation of municipally owned land has special public significance. Title to municipal land is qualified title for public benefit. The interests of fairness and justice require no one individual should be allowed to deprive others of the benefit of municipal land.

[40] The respondent submitted that a legal non-conforming use relates to the use property which is established under a zoning bylaw in effect at the time the use commenced, but which is not currently permitted. Legal non-conforming use status is protected by s. 34(9) of the Planning Act. However, the nature of the non-conforming use is determined by the use of the property, not by the restricting bylaw. The applicant does meet the requirements of s. 34(9) to establish the encroachments are a legal non-conforming use.

[41] Further, the respondent argued that prior to March 2021, and the filing of the application for re-zoning, neither the applicant nor the respondent were aware of the encroachment. Ms. Shim acknowledged that there was no reference to a parking space in the site plan, only to a garage ramp and a sloped bank cover. She also conceded there was no reference in the site plan to any concrete planter. The respondent argued when it approved construction of the 7 Cobourg Street building, through the site plan agreement, the respondent had no knowledge or way of foreseeing the encroachments, particularly the parking space. In addition, Mr. Lemon, on behalf of the applicant, acknowledged in cross-examination that the consolidated surveys did not show or indicate any of the encroachments. He also acknowledged that the site plan did not include reference to the encroachments.

[42] The respondent acknowledged that the 7 Cobourg Street encroachments existed prior to the policy that was adopted in 2006. However, encroachment agreements were commonly used by the respondent and required for encroachments prior to that date. It was the uncontested evidence of Ms. Dafoe that an encroachment agreement would have been required before adoption of the policy. As a result, the encroachments cannot claim legal non-conforming use status.

[43] The respondent argues that the applicant has misconstrued Mr. DeWeerd’s testimony. Mr. DeWeerd stated that he was unaware whether the building inspector at the time approved the encroachment and was unaware as to whether there was a policy in place prior to 2006.

[44] Counsel submitted that the respondent never expressly approved the encroachments. Without explicit approval, encroachments cannot be legal non-conforming uses or otherwise permitted or grandfathered. The applicant has failed to adduce any evidence to establish that the 7 Cobourg Street encroachments were “lawfully used for such purpose on the day of the passing of the bylaw” or were “for which a permit had been issued under s. 8(1) of the Building Code Act, 1992, prior to the day of the passing of the bylaw.” Only those circumstances could give rise to a legal non-conforming use.

[45] The encroachment policy requires that an application for encroachment be submitted when a property owner becomes aware of an existing structure that is encroaching on municipal property. The evidence before the Court establishes the applicant and the respondent only became aware of the encroachments in 2021. Therefore, an encroachment agreement was requested and is required.

[46] With respect to the issue of estoppel, counsel for the respondent referred to Southwest Properties Inc. v. Calgary (City of), 2003 ABCA 10, 22 D.L.R. (4th) 430. There, the Alberta Court of Appeal stated that a court could not interfere with a municipality’s encroachment policy. Municipal public policy is designed to treat all residents equally. Permitting one individual to override public policy through judicial intervention would favour those who have the time and resources to undertake court proceedings: Southwest Properties, at para. 18.

[47] The respondent argued that the applicant’s proposal that the requirement of the encroachment agreement be restricted to the parking space, but not the other structures is not tenable. It would be a contravention of the city’s obligation to hold municipally owned lands in trust for the public. To allow the encroachments to remain without an encroachment agreement fails to protect the paramount interests of the public.

[48] The applicant must prove the following essential elements to establish a claim for estoppel:

a. an owner of the land induces, encourages or allows the claimant to believe he or she will enjoy some benefit over the property, b. in reliance upon the belief the claimant acts to its detriment to the knowledge of the owner; and, c. the owner selects to take on unconscionable advantage of the claimant but denying the right or benefit that he expected to receive.

Further, the doctrine can never interfere with the municipality carrying out its statutory duties under the Municipal Act.

[49] Firstly, the issuance of a building permit approval does not establish inducement, encouragement, or that the respondent allowed the applicant or its predecessors to believe they would enjoy some right or benefit. Secondly, the applicant has not made clear to the respondent that it intended to rely on its belief with respect to the encroachment. Thirdly, there is no evidence that the respondent sought to take unconscionable advantage. The encroachment policy was validly enacted by council pursuant to the provisions of the Municipal Act.

Issues

[50] I find the issues to be determined are as follows:

a. Were the 7 Cobourg Street encroachments authorized by the respondent? b. Are the 7 Cobourg Street encroachments legal non-conforming uses? c. Is an encroachment agreement required for the encroachments or is the respondent estopped from enforcement action with respect to them?

Analysis

Were the 7 Cobourg Street encroachments authorized by the respondent?

[51] In my view, an encroachment agreement would not be required if the encroachments were authorized. The parties have not provided evidence of a specific approval or authorization for the 7 Cobourg Street encroachments. That is, there is no evidence that the applicant’s predecessor in title obtained some form of approval or consent specific to the construction of the encroachments. Parenthetically, as I will explain later, I conclude that approval of neither the site plan nor the building plans constitute approval of the encroachments.

[52] The applicant argues that the encroachments were obvious. Mr. DeWeerd appeared to acknowledge that on the face of the site plan drawings and the approved plans submitted with the building permit that the encroachments were authorized. Further, any person attending at the property, in particular a city official, ought to have been clearly aware of the encroachments. In effect, any person would have been, or ought to have been, aware that any structure erected as close to the road allowance as the structures are, constitutes an encroachment.

[53] In cross-examination, Mr. DeWeerd acknowledged that the encroaching structures were visible and likely visible at the time construction was completed. He further acknowledged that the respondent issued an occupancy permit that did not disclose any deficiencies or work orders, and when the property was purchased by the applicant, the respondent provided a letter to the applicant that it was not aware of any work orders or bylaw infractions. However, all those admissions are in the context of this litigation. Mr. DeWeerd stated that he was a resident of Stratford and likely walked by the property on multiple occasions but never noted or put his mind to the encroachments. He simply did not pay attention to them and was not aware of them.

[54] In cross-examination, Mr. DeWeerd was shown a copy of Exhibit A to Mr. Lemon’s affidavit, dated May 13, 2023. However, that schedule (Schedule IA) had coloured markings which were not on the original plans as included in the application record. Mr. DeWeerd agreed that the red line was the property line. He also agreed that city officials would have no difficulty identifying a broken line at the front of the property to the left of the words “garage ramp” “based on this drawing”. While Mr. DeWeerd did not agree there was a red granite step shown on the plan, he did acknowledge there was something there. He further agreed the sloped ground cover is in the same position of the concrete retaining wall shown in the photographs. He agreed the structures were partly on municipal property and partly on 7 Cobourg Street property.

[55] In the course of his cross-examination on August 15, 2023, Mr. Lemon was referred to Exhibit C, p. 45 of the responding application record. Mr. Lemon agreed with counsel that Exhibit C was a consolidation of the surveys prepared for the subject property. After some further questioning, counsel suggested that Exhibit C depicted multiple drawings of the building as it appeared in 1990. Mr. Lemon agreed. I have reviewed that document. The drawing in the top right-hand corner is undated. The drawing in the top left-hand corner is a reference plan which was deposited February 8, 1998. The date on the drawing at the bottom of the page is very difficult to read, but it appears to be 1998, not 1990.

[56] In continued questioning, Mr. Lemon agreed that neither the drawings in Exhibit C of the responding application record nor the site plan include any reference to the encroachments.

[57] From my review of the site plans and the building permit plans, it appears there was no effort to draw any person’s attention to the encroaching structures. The pedestrian ramp was the only encroachment that was clearly marked. The parking space/ramp on the concrete block or block of red granite and the sloped bank/planter were either not labelled or labelled as something else.

[58] Ms. Shim when cross-examined on her affidavit, acknowledged there was no reference to parking or a parking space on the site plan. Only a garage entry ramp and a sloped bank cover. There was no reference to a concrete planter.

[59] For his part, Mr. Lemon agreed in cross-examination that the concrete planter is not noted separately but rather is an extension of the sloped bank. There is a double line, but it is not noted as a concrete wall. He also stated the ramp is clearly shown by the diagonal line. It is a schematic that is part of the site plan and not part of the building permit drawings. However, he agreed that neither the north property limit nor Cobourg Street is identified on the drawings. He also appeared to acknowledge there was no reference to a concrete block.

[60] The applicant’s argument of tacit approval must be considered against a backdrop of what the structures encroached upon. They are on a municipal road allowance. This is land held by the municipality in trust for a public purpose – the common benefit of a municipality’s residents. I will refer to this in more detail when I consider the issue of estoppel.

[61] I have viewed the plans carefully and would note the following:

a. There is no legend on either the site plan sketches or the building plan drawings that indicates what particular lines mean. b. The property line is labelled on the south, east and west limits of the lot, but not on the north limit of the lot. It is from the north limit that the encroachments extend. The plans depict the northern lot limit in the same fashion as the other limits but did not label it. c. Schedule 1A to the site plan clearly depicts a ramp. But it does not depict a step or a red granite block. The applicant suggests that was apparent from the sketch. In my view, it is not. d. The encroachment to the parking space is noted as a ramp, not a parking space. Therefore, any reader of the plan would have to infer that a vehicle may park along the ramp. e. There is no concrete planter shown. There is a sloped bank with cover. There is a line on the west edge of the sloped bank that may have significance but without a legend I am not sure what it means.

[62] In my view, it is fair to ask whether the respondent tacitly approved the construction of the encroachments and subsequently their continued use. Neither party was able to provide me with any authority for such a proposition. In District of West Vancouver (Corporation of) v. Liu, 2014 BCSC 1230 (“Liu”), the respondent party purchased property without knowing it encroached on a municipal road allowance. The District sought an injunction requiring the removal of the encroaching structures. The respondent sought relief under s. 36 of the Property Law Act, R.S.B.C. 1996, c. 377. That is not an option available to this applicant. Nonetheless, I find the underlaying question to be same: was the encroachment authorized or unlawful?

[63] In Liu, the respondent was successful at first instance. The chambers judge appeared to accept where an encroachment on public property has existed for a period of time it may be said the municipality has tacitly approved the encroachment: Liu, at paras. 125-127.

[64] However, the British Columbia Court of Appeal took a different view and overturned the chambers judge. In District of West Vancouver (Corporation of) v. Liu, 2016 BCCA 96, the Court of Appeal held there was no evidence that could support a finding that the district plaintiff approved the encroachment; such a finding was speculative: at para. 54. The Court of Appeal further concluded it was not open to the chambers judge to create a hypothetical narrative and theorize that the encroachments were authorized: at para. 61.

[65] In this case, the encroachments are only visible from the site plans and building permit plans after significant investigation or interpretation. They were not clearly identified as encroachments onto municipal property. Further, the stamp placed on the building permit plans makes the approval somewhat equivocal. However, even if tacit approval was sufficient, I do not find the evidence establishes that such approval has occurred.

[66] Counsel for the respondent referred to Visnjic v. Town of LaSalle, 2017 ONSC 2082, aff’d 2018 ONCA 803 (“Visnjic”), which appeared to acknowledge the possibility of tacit approval with respect to municipal road allowances. There the Court was considering an encroachment of a municipal right of way in the context of a claim for proprietary estoppel. Howard J. stated, at para. 115:

… Where, as here, the plaintiffs did not bring it home to the Town that they intended to access the garage using the unopened road allowance, they cannot argue that it was reasonable for them to have regarded the Town as having given tacit approval for them to use the unopened road allowance to access the garage. …

[67] The applicant takes the position that the encroaching structures are significant features of the property and are integral to the structure. The ramp provides the only entrance to the residential portion of the property and the concrete planter has structural value. If that is indeed the case, I am surprised the approval of such important encroachments would be left to the happenstance of the building official or city clerk properly interpreting the plans that were submitted. In the end, I conclude that the applicants have not satisfied me the respondent approved the encroachments. Therefore, they were not authorized.

Are the 7 Cobourg Street encroachments legal non-conforming uses?

[68] The applicant’s secondary position is that the encroachments are legal non-conforming uses. In support of that proposition, the applicant refers to s. 34(9) of the Planning Act. I do not find that the applicant can prevail on the basis of that position.

[69] The ability to regulate public streets is codified in s. 3 of the Municipal Act. At common law, the courts have found the preservation of municipally owned land is “imbued with special public significance”: Warkentin, at para. 118. In effect, the property is owned by a municipality is held by way of a qualified title for public benefit. The “interests of fairness and justice require no one or two individuals should be allowed to deprive others of part of that benefit”: Warkentin, at para 118.

[70] More fundamentally, in order for the applicant to successfully claim a legal non-conforming use, it has to establish the encroachment was at some point in time a legal use. That is, the use existed either before the passage of any zoning of any bylaw or regulations or was permitted on a preceding bylaw and regulation.

[71] Section 34(9) of the Planning Act provides,

Except lands and buildings (9) No by-law passed under this section applies, (a) to prevent the use of any land, building or structure for any purpose prohibited by the by-law if such land, building or structure was lawfully used for such purpose on the day of the passing of the by-law, so long as it continues to be used for that purpose; or (b) to prevent the erection or use for a purpose prohibited by the by-law of any building or structure for which a permit has been issued under subsection 8(1) of the Building Code Act, 1992, prior to the day of the passing of the by-law, so long as the building or structure when erected is used and continues to be used for the purpose for which it was erected and provided the permit has not been revoked under subsection 8(10) of that Act.

[72] Legal non-conforming use relates to the use of property which was established under a zoning bylaw in effect at the time the use had commenced but is not currently permitted. I agree with the respondent that the nature of the non-conforming use is not determined by reference to the restricting bylaw. The non-conforming status references the actual use to which the property was put.

[73] I would also refer to the evidence of Ms. Shim which I have outlined above. She acknowledged the plans referenced a ramp but not a parking spot, and likewise a sloped ground cover but no planter. Therefore, any existing legal use was not clear.

[74] I conclude the encroachments do not meet the requirements for legal non-confirming use status. There was no bylaw allowing for the encroachments when they were installed.

[75] Further, the applicant’s argument that there was no encroachment policy in place prior to the 2006 bylaw is not compelling. While it is true that there was no formal policy or bylaw, it was still common practice in this municipality to require encroachment agreements where appropriate. The lack of a formal policy and bylaw does not mean all encroachments are therefore lawful.

Estoppel

[76] The applicant argues that where one person, by declaration, act or omission has intentionally caused or permitted another to believe a thing to be true and to act upon such belief neither he or she nor his or her representative may be allowed in any suit or proceeding to deny the truth of that thing. Here, the respondent approved the site plan drawings and building permit drawings. The respondent inspected the construction and issued occupancy permits. The applicant obtained a letter from the respondent in May 2019 indicating there were no work orders against the property. There were obvious encroachments; therefore, the respondent cannot deny it permitted such encroachments.

[77] The applicant was clear that to distinguish its position from a finding of adverse possession and accepted that such a claim was not available to it.

[78] Howard J. described the elements necessary to be present to establish a claim of proprietary estoppel against a municipal corporation in Visnjic, at para. 108:

a. an owner of land induces, encourages, or allows the claimant to believe that he has or will enjoy some right or benefit over the owner’s property. b. in reliance upon this belief, the claimant acts to his detriment, to the knowledge of the owner. c. the owner seeks to take unconscionable advantage by denying him the right or benefit that he expected to receive.

[79] The respondent submits that the applicant does not meet the test for proprietary estoppel. I agree. Firstly, there was no inducement. Neither party was aware of the encroachments until the zoning bylaw application was brought. If Shim-Sutcliffe was aware of the encroachments, there was no evidence it informed the respondent nor that the respondent induced or encouraged Shim-Sutcliffe to believe the owners of 7 Cobourg Street had some right with respect to the encroachments.

[80] In any event, even if I agree with the applicant’s suggestion that there was some inducement or encouragement, the applicant has not established the second element. There is no indication that the applicant or its predecessors in title made it clear to the respondent that they intended to rely on a belief about a right to the encroachments. Likewise, there is no evidence that the respondent knew either the applicant or its predecessors in title was relying on such a belief.

[81] Finally, I have already noted there is no suggestion that the respondent’s employees or representatives behaved in a manner that could be considered taking an unconscionable advantage. At best, there is an oversight which arguably could have and should have been better understood by the architects submitting the plans than the municipality tasked with interpreting them.

Conclusion

[82] For all the above reasons, I conclude that the application must be dismissed.

Costs

[83] Both parties provided me with bills of costs. As the respondent was the successful party in the application, it is presumptively entitled to its costs. Nonetheless, I would ask the respondent to make costs submissions within the next 20 days unless the parties can agree to costs. The applicant would then provide its responding costs submissions no later than 20 days after receipt of the respondent’s.

Justice Scott K. Campbell Date: January 17, 2024