2024 ONSC 5251

Court File and Parties

COURT FILE NO.: CV-23-53 DATE: 20240920

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: CORPORATION OF THE MUNICIPALITY OF TEMAGAMI, Applicant,

AND:

TEMAGAMI BARGE LIMITED, DASHIEL LOWERY DELAROSBEL, Respondents,

AND:

HIS MAJESTY THE KING IN RIGHT OF THE PROVINCE OF ONTARIO AS REPRESENTED BY THE MINISTER OF NORTHERN DEVELOPMENT, MINES, NATURAL RESOURCES AND FORESTRY, Respondent

BEFORE: Justice J.S. Richard

COUNSEL: Charles Loopstra K.C., for the Applicant Leo Longo, for the Respondents Temagami Barge Limited and Dashiel Lowery Delarosbel Eunice Machado, for the Respondent for His Majesty The King in Right of the Province of Ontario as Represented by the Minister of Northern Development, Mines, Natural Resources and Forestry

HEARD: June 27-28, 2024

REASONS FOR DECISION

Overview

[1] The Applicant, Corporation of the Municipality of Temagami (the “Municipality”), brings an Application seeking to enforce its zoning bylaws.

[2] The relief requested includes an order for a permanent injunction under the Municipal Act, 2001, S.O. 2001, c.25 (the “Municipal Act, 2001”), to prevent the Respondents, Temagami Barge Limited and Dashiel Lowery Delarosbel (collectively, “TBL”) from operating parts its business on the property municipally known as 1658 Temagami Access Road, in Temagami, Ontario (the “Property”). The Municipality also seeks a partial closure of the Property and an order forcing TBL to remove two large Sea-Can containers and an office trailer from the Property.

[3] TBL opposes the Application and argues that all uses are lawful and compliant with municipal by-laws, or at least lawful pursuant to the Planning Act, R.S.O. 1990, c. P13 (the “Planning Act”).

[4] His Majesty the King in Right of the Province of Ontario as Represented by the Minister of Northern Developments, Mines, Natural Resources and Forestry (the “MNR”), is a named Respondent in the Application because it owns the Property, which is therefore designated Crown land. It supports the Municipality’s position.

[5] The MNR is also the Plaintiff in a separate action, CV-09-4721 (North Bay), which was commenced against Temagami Barge Limited in 2009. In that action, the MNR alleges Temagami Barge Limited is illegally occupying the Property, and the litigation is ongoing. Legal occupation is assumed for the purpose of this Application, as the court has yet to rule on this question.

[6] To sum up, in this Application the court must simply determine whether or not TBL’s uses of the Property conform with municipal bylaws. If they do not, then the court must then assess whether or not TBL’s uses can be deemed “legal non-conforming”, which would deem them lawful and permissible. If the court answers both questions in the negative, then it must determine if the reliefs sought by the Municipality are appropriate.

Background

[7] The Respondent, Temagami Barge Limited, is a corporation owned by Respondent Dashiel Lowery. TBL operates a business on the Crown land Property, which is located within the boundaries of the Municipality of Temagami.

[8] The current zoning by-law in the Municipality of Temagami is By-Law No. 06-65-, as amended (the “2006 By-law”).

[9] Under the 2006 By-law, the Property is zoned as “Special Management Area (SMA) Zone (Crown Land)” (“SMA”). Permitted uses in an SMA zone are:

1. conservation;
2. hunt camps;
3. huts and warm-up shelters;
4. recreational trails;
5. commercial timber harvesting and aggregate extraction, except in the SMA Zone on the mainland surrounding Lake Temagami;
6. mining; and
7. permanent dwelling unit or seasonal dwelling unit and accessory buildings and structures existing on the date of adoption of this By-law.

[10] Section 7.2.4 of the 2006 Zoning By-law stipulates that the Property is specifically identified as an “SMA(h)” zone. The “(h”) stands for “holding”, which prohibits any “new development” or “building alteration”, and:

The holding (h) symbol shall only be removed when the existing use on the site has been removed and any necessary site remediation has been completed.

[11] In short, once the current 2006 By-law was enacted, it prohibited any uses not falling within those 7 categories, as well as any “new development” or “building alterations” for TBL onwards.

[12] There was an exception to that rule, however, in s.6.29, which grandfathered any “lawful uses” being carried out prior to the adoption of the 2006 By-law:

6.29 NON-CONFORMING USES AND BUILDINGS The provisions of this By-law shall not apply to prevent the use of any land, building or structure for any purpose prohibited by this By-law if such land, building or structure was lawfully used for such purpose on the date of the passing of this By-law so long as it continues to be used for that purpose. (Emphasis added)

[13] The Municipality alleges that not only are TBL’s uses of the Property in contravention of the SMA(h) zone, it also submits that TBL’s uses cannot be saved under s.6.29 of the 2006 By-law since they were never lawful to begin with. As such, the Municipality asks the court to order a 2-year closure of the Property, the removal of sea-can containers and an office trailer, as well as a permanent injunction prohibiting TBL from carrying out the following uses:

a. A marina with a gas bar; b. Retail sale of fuel; c. Expansion of propane dispensary service since February 23, 2006; d. Commercial docking and mooring; e. Outdoor parking rental; f. Barge rental business (barging for the lawful business on the Property is permitted); g. Retail aggregate sales (aggregate storage for the construction business is permitted); h. Outdoor storage (outdoor storage for the construction business is permitted); i. Scrapyard; j. Boat repairs and barge repairs for others; k. Public access to Lake Temagami; and l. Service shop and retail store.

Facts

[14] In brief, the Property is situated on the shoreline of Lake Temagami. Lake Temagami is a large lake that includes many islands on which seasonal residential cottages, tourist resorts, permanent residences, and a Temagami First Nation community, are situated.

[15] It is uncontested that in 1974, William Milne & Sons Ltd. (“Milne”) began a logging business on the Property, and that it constructed a bunkhouse and a docking facility consisting of two docks. Milne also had fuel dispensing equipment on the Property that it used to support its logging operations.

[16] TBL was founded by Respondent Dashiel Delarosbel’s father in or around 1982. It serviced the Temagami Lake community and generally consisted of barging operations, maintenance of sewage disposal systems, waste handling business, stockpiling of materials and storing. TBL’s operations were located at another location, and not on the Property.

[17] In 1988, TBL moved its operations to the Property while Milne still occupied it. Specifically, it relocated its propane dispensary to the Property, along with two barges and some small work boats.

[18] In or around 1989 and 1990, Milne went bankrupt. At that point, TBL purchased some of Milne’s assets and became the sole occupier of the Property.

[19] In 2011, Respondent Dashiel Delarosbel’s father passed away, and his business partner continued to own it until 2019 when Dashiel Delarosbel finally took ownership.

[20] TBL continues to be the sole occupier of the Property today. It describes its current business as “generally consisting of barging operations, installations, maintenance and repair of sewage disposal systems and waste handling business, stockpiling of materials, storing its equipment and barges”. It provides propane and fuel service and sales to the cottage owners and residents of Lake Temagami.

[21] TBL advertises its services on a highway sign that reads: "Temagami Cottage Depot sewage systems, pump-outs, barge rentals, contracting, propane tank exchange and filling and Gas Pump”.

[22] Various bylaws have governed zoning and use of the Property during TBL’s period of occupation:

• December 10, 1981: By-law 81-62 designated the Property and area as “Light Industrial” (Zone “I”) (the “1981 By-law”);
• February 23, 2006: By-law 06-650 replaced By-Law 81-62, and designated Property as an “SMA(h) zone)” (the “2006 By-law”);
• August 22, 2019: Property Standards By-law 19-1475 comes into force (the “2019 By-law”) – governs property standards only, not zoning.

[23] On November 17, 2021, the Municipality issued a Property Standards Order to TBL ordering the cleaning of the Property and removal of dilapidated items, including vehicles, trailers, and other objects stored on the Property. The said order was not appealed by TBL.

[24] On December 10, 2021, the Municipality issued a Notice of Contravention against TBL alleging zoning contraventions as alleged in this Application. TBL did not appeal the Notice of Contravention.

[25] TBL argues that the current uses are a mere expansion of uses that were permitted under the 1981 By-law, and are therefore lawful under s.6.29 of the 2006 By-law. Alternatively, it argues that if some were not proper “expansions”, these uses were established before the 1981 By-law came into force, and are therefore protected under s.34(9)(a) of the Planning Act.

[26] Each side presented expert evidence opining on the lawfulness of TBL’s uses of the Property. While that may have been useful to the parties for the formulation of their respective positions, ultimately, this determination may only be made by this court.

Issues

[27] The issues in this Application are:

a) Are TBL’s current uses of the Property permitted under the current 2006 By-Law? b) If not, are TBL’s current uses of the Property permitted under s.34(9)(a) of the Planning Act? c) If the uses are not lawful, should injunctive relief be granted?; and d) If the uses are not lawful, should a partial closure of the Property be ordered pursuant to s. 447.1 of the Municipal Act? e) Should the court order the removal of two sea-can containers and an office trailer within 30 days?

Analysis

The Law

[28] No one contests the validity of the Municipality’s by-laws, and it is important to highlight that municipalities are conferred “broad authority (…) to enable the municipality to govern its affairs as it considers appropriate and to enhance the municipality’s ability to respond to municipal issues” (Municipal Act, s.8(1)). This authority is reinforced by Part XIV of the Municipal Act, 2001, which sets out a variety of measures and powers allowing a municipality to enforce its by-laws.

[29] The Property is subject to the 2006 By-law and therefore its uses must be confined to those permitted:

1. conservation;
2. hunt camps;
3. huts and warm-up shelters;
4. recreational trails;
5. commercial timber harvesting and aggregate extraction, except in the SMA Zone on the mainland surrounding Lake Temagami;
6. mining; and
7. permanent dwelling unit or seasonal dwelling unit and accessory buildings and structures existing on the date of adoption of the Zoning By-law.

[30] It is plain and obvious that many of TBL’s current uses do not fall within the 2006 list of permitted uses. Thus, the analysis must be confined by s.6.29 of the 2006 By-law or the Planning Act, both of which offer grandfathering protection of previous lawful uses. In other words, no contravention will be found if it can be shown that:

a. TBL’s current uses were permitted under the 1981 By-Law, and have been continuous since then; or b. these uses were present before 1981 when Milne occupied the Property, and have remained continuous ever since (s.39(a) of the Planning Act).

[31] The Property was zoned as “Light Industrial (I) Zone” under the 1981 By-Law, The 1981 By-law explicitly prohibits commercial general uses, marinas, gas bars, retail stores and service shops. In addition, it defines permitted “Industrial Uses” as follows:

"INDUSTRIAL USE means the use of land, building or structure designed for the purpose of manufacturing, assembling, making, preparing, inspecting, ornamenting, finishing, treating, altering, repairing, warehousing, or storing or adapting for sale of any goods, substance, article, or thing, including the storage of building and construction equipment and material, but not including any obnoxious industry, mine, pit, quarry or oil well. The following are also considered industrial uses, - transportation, wholesaling, storage or shipping, bulk sales establishments, lumber yards, sawmills and contractor’s yards. (Emphasis added)

[32] If it cannot be shown that these current uses were permitted in the 1981 By-law, then they may nonetheless be deemed lawful if the uses can satisfy section 34(9)(a) of the Planning Act, which reads:

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; (…) (Emphasis added)

[33] Section 34(9) of the Planning Act has been interpreted by the courts, and it has been established that “lawful use” must not be interpreted strictly. They allow for expansions or evolutions of uses that can still be deemed lawful even with some variation of the original permitted use.

[34] In Saint-Romuald (City) v. Olivier, 2001 SCC 57, [2001] 2 S.C.R. 898 (“Saint-Romuald”), for instance, the majority of the Supreme Court of Canada bench ruled that a lawful use may be intensified, expanded and/or altered, and remain protected, so long as no “extreme variation” is made to constitute a wholly different use.

[35] At paragraph 39 of Saint-Romuald, moreover, the majority explained that a use will be protected from a new by-law restriction if the current use is “merely an intensification of a pre-existing activity”, and set out the test to make this determination:

1. It is firstly necessary to characterize the purpose of the pre-existing use (Central Jewish Institute, supra). The purpose for which the premises were used (i.e., “the use”) is a function of the activities actually carried on at the site prior to the new by-law restrictions.
2. Where the current use is merely an intensification of the pre-existing activity, it will rarely be open to objection. However, where the intensification is such as to go beyond a matter of degree and constitutes, in terms of community impact, a difference in kind (…), the protection may be lost.
3. To the extent a landowner expands its activities beyond those it engaged in before (as where a custom picture-framing shop attempted to add a landscaping business in Nepean (City) v. D’Angelo (1998), 49 M.P.L.R. (2d) 243 (Ont. Ct. (Gen. Div.)), the added activities may be held to be too remote from the earlier activities to be protected under the non-conforming use. In such a case, the added activities are simply outside any fair definition of the pre-existing use and it is unnecessary to evaluate “neighbourhood effects”.
4. To the extent activities are added, altered or modified within the scope of the original purpose (i.e., activities that are ancillary to, or closely related to, the pre-existing activities), the Court has to balance the landowner’s interest against the community interest, taking into account the nature of the pre-existing use (e.g., the degree to which it clashes with surrounding land uses), the degree of remoteness (the closer to the original activity, the more unassailable the acquired right) and the new or aggravated neighbourhood effects (e.g., the addition of a rock crusher in a residential neighbourhood is likely to be more disruptive than the addition of a fax machine). The greater the disruption, the more tightly drawn will be the definition of the pre-existing use or acquired right. This approach does not rob the landowner of an entitlement. By definition, the limitation applies only to added, altered or modified activities.
5. Neighbourhood effects, unless obvious, should not be assumed but should be established by evidence if they are to be relied upon.
6. The resulting characterization of the acquired right (or legal non-conforming use) should not be so general as to liberate the owner from the constraints of what he actually did, and not be so narrow as to rob him of some flexibility in the reasonable evolution of prior activities. The degree of this flexibility may vary with the type of use. Here, for example, the pre-existing use is a nightclub business which in its nature requires renewal and change. That change, within reasonable limits, should be accommodated.
7. While the definition of the acquired right will always have an element of subjective judgment, the criteria mentioned above constitute an attempt to ground the Court’s decision in the objective facts. The outcome of the characterization analysis should not turn on personal value judgments, such as whether nude dancing is more or less deplorable than cowboy singing. (…)

Application to this case

[36] The list of alleged prohibited uses is as follows:

1. Marina with a gas bar;
2. Retail sale of fuel;
3. Expansion of propane dispensary service since February 23, 2006;
4. Outdoor parking rental;
5. Commercial docking and mooring;
6. Barge rental business (barging for lawful business on Property is permitted);
7. Retail aggregate sales (aggregate storage for construction of business is permitted);
8. Outdoor storage (outdoor storage for the construction business is permitted);
9. Scrapyard;
10. Boat repairs and barge repairs for others;
11. Public access to Lake Temagami;
12. Service shop and retail stores.

[37] As mentioned above, under the 2006 By-law, the Property is zoned as “SMA(h)”, which permits the uses for conservation, hunt camps, huts and warm-up shelters, recreational trails, commercial timber harvesting and aggregate extraction, mining, and permanent dwelling unit or seasonal dwelling units. It is plain and obvious that these alleged use violations do not fall within the list of permitted use under the current 2006 Bylaw.

[38] Thus, we must then turn to the 1981 By-law to see if these were lawful before the enactment of the 2006 By-law, so as to trigger paragraph “6.29 NON-CONFORMING USES AND BUILDINGS” of the 2006 By-Law.

[39] TBL started relocating its operations to the Property in or around 1988. At the time, the 1981 By-law was in place, and the Property was zoned as “Light Industrial I Zone” limiting use of the Property to “Industrial Uses”.

[40] Thus, this court must determine whether or not TBL’s current uses:

1. fall within the definition of “Industrial Use” as defined in the 1981 By-Law; and
2. were continuous up to and until the adoption of the 2006 By-law.

[41] If they do, the relief requested by the Municipality will necessarily have to be denied. If they do not, then the Respondents will need to show that the same uses today were exercised by Milne on the Property prior to 1981 (i.e. s. 34(9)(a) of the Planning Act).

[42] The Municipality posits that when TBL relocated onto the Property in and around 1988, use of the Property was limited to Milne’s logging operations. On the Property, there were storage buildings, an employee bunkhouse, and a few barges for the logging operations with ancillary docking facilities. Milne also had a fuel pump for its own use only.

[43] TBL argues that while its operations looked differently than those of Milne, up to and until 2006 its uses remained within the definition of “industrial use”, and after 2006, any uses that may have expanded were grandfathered by s.6.29 of the 2006 Zoning By-law, and/or the Planning Act, emphasizing that just because an “Industrial Use” generates income, it does not convert it to a “Commercial Use”, which is specifically prohibited in this zone.

[44] Unfortunately, evidence, much of which was contradictory, was reduced to affidavit evidence and examination transcripts to support the parties’ respective positions. Each party presented “expert evidence,” and in their submissions, each attempted to discredit the evidence of the other’s expert planner, highlighting that the planners had only been on the Property once or not at all, and therefore, had no actual knowledge of uses carried out by either Milne or TBL.

[45] Expert opinion on each side was largely disregarded by this court for the purpose of this analysis. With respect, it is this court’s role, not the experts’, to opine on the lawfulness of a use. The Court could, however, and did, accept as reliable documentary evidence introduced by way of exhibits to the expert affidavits.

[46] Despite not being able to assess credibility through viva voce evidence, the court was still able to prefer the affidavit evidence of Laurier Picard dated October 13, 2023, with respect to the historical uses of the Property.

[47] Laurier Picard worked for Milne and Milne’s subcontractors as a skidder operator from 1983 to 1990. He resided in the Property’s bunkhouse by himself, and eventually with his wife and children, from June 1984 and January 1988. His affidavit evidence included personal photos and a sketch of the Property. In his evidence, he deposed:

• The only buildings on the Property were the bunkhouse, two small sheds near the bunkhouse, an open-framed building with a roof down by the lake, and an open-frame building with a roof close to the bunkhouse;
• There were two docks on the Property that were sufficient to accommodate one barge, one tugboat, and a small steel boat;
• The boats were used for Milne as part of their logging operations;
• There were no marina operations, boat rentals or any other marine-related uses operated from the Property;
• Although there was a fuel tank on the Property, it was for Milne’s own use only, there was no sale of fuel, oil or any other product on the Property.

[48] The Municipality also relies on a sketch prepared by the MNR to support its position that Milne only used the Property for its logging operations.

[49] As mentioned previously, the parties’ respective experts each formed their opinions on the same historical documents that are before the court, and neither had first-hand knowledge of the Property. During examinations, furthermore, TBL’s planning expert, Paul Goodrich, admitted he had no knowledge of the uses carried out by Milne other than what he read in the record, and admitted that the record only supports a finding that Milne operated a logging operation with a bunkhouse on the Property.

[50] Mr. Delarosbel was 7 years old in 1988, and during examinations, he also admitted having no recollection of Milne’s operations. Much of Mr. Delarosbel’s affidavit evidence is based on information from which he was “advised” by his father, including his father’s opinion that he complied with municipal by-laws.

[51] According to TBL, when it relocated operations to the Property in 1988, its operations generally consisted of barge rentals, contracting, septic pump-outs, mooring slips, parking and storage, breakbulk, stage and transloading building supplies and transloading demolition/construction debris. It further submits that the business expanded in 1988 with improvements permitting the installation of a bulk propane facility and the associated inspections and certifications of propane tanks. It supports this position with the affidavit evidence of its expert, Paul Goodrich, sworn January 29, 2023, and the affidavit evidence of Dashiel Delarosbel sworn January 28, 2023. According to their evidence, these operations have been open and continuous since 1988. At the very least, TBL argues, its uses today constitute a mere expansion of permitted uses and are therefore lawful under the Planning Act.

[52] I will now address each alleged violation individually.

Marina with a gas bar

[53] It is agreed that when TBL relocated to the Property, it had two barges that it used for its contracting business. This was, and continues to be, permissible under section 6.29 of the 2006 By-law, and the Planning Act.

[54] The Municipality alleges, however, that TBL is now running a full-fledged marina, which is strictly prohibited, with 25 seasonal boat customers who park at its dock. The Municipality, furthermore, relies on the examination of Mr. Delarosbel to support its argument:

495. Q. ... but my - my question is, what is your - what is the main operation of your business then? What is - how do you make your money today? A. Well, Temagami is a very small community, so we do almost everything to - to make money.

496. Q. Okay. And then in addition to that you also run a marina and gas bar? A. No.

497. Q. Well, you run - basically you run a marina and gas bar with respect to at least the - the dockage and parking? A. We're not like how you would think of a marina, you know, I mean, we are - I mean, the place - 25 the facility, by definition, is a marine facility. You know, whether it's ...

498. Q. I'm not disagree - I'm not disagreeing that you have - you have dockage, you have - you have marine A. So we have a marine facility.

499. Q. What I'm saying is . .. A. We we're running a marine facility complete with dock and gas. (Emphasis added)

[55] The Municipality also asks the court to draw an adverse inference from a refused undertaking from Mr. Delarosbel’s cross-examinations:

330. Q. Okay. So do you have contracts with 20 cottagers to park their boats there when they're not at the cottage? A. Yeah, we have - not - customers of Temagami Barge pay to park there.

331. Q. Okay. How many of those do you have? A. Off the top of my head, you know, there's probably three - maybe twenty (20). You know, it changes from month to month, year to year, you know, who's using it, but, you know, probably twenty-five (25) maybe.

332. Q. Okay. So twenty-five (25) customers. Now, do you have contracts with them? A. It all depends what the definition of contracts is.

333. Q. Well, do - did they sign something? What do they sign? A. Yeah, they sign a document to - to park there.

334. Q. Okay. So I'd like you to produce that document for me. A sample - is it the same document for each customer or is it different? A. They're generally the same. There may be some small - small changes between the - between customers.

335. Q. Okay. Well, can you give me at least two or 20 three samples of these - of these contracts, please? MR. LONGO: I’ll take that under advisement. [*U]

MR. LOOPSTRA:

336. Q. And what do you charge on an annual basis? A. It depends. It changes from year to year, with the inflation and stuff things have been going up. I don't recall ...

337. Q. But what do you currently charge? A. I don't recall. It's by - by the foot and

[56] Later in the cross-examinations, Mr. Delarosbel describes customers parking their facilities as “tenants”:

352. Q. Is that a marine fuel pump? A. No.

353. Q. What is that? A. It's a fuel pump.

354. Q. A fuel pump, what, diesel fuel? A. Gasoline.

355. Q. Gasoline for what, for your own equipment or for other - for other reasons as well? A. For other reasons as well.

356. Q. What are your other reasons? A. Well, our tenants use - use gas.

357. Q. Sorry, you have what? A. Our tenants use gas.

358. Q. What do they use it for? A. Their vessels or cars.

(Emphasis added)

[57] Marinas are not permitted under the SMA(h) Zone. The 2006 By-law even designates a separate Zone for “marinas”. Thus, TBL’s use, as described in the above excerpt of Mr. Delarosbel’s examinations, would need to have been permissible under the 1981 By-law to be saved by 6.29 of the 2006 by-law.

[58] The 1981 By-law, however, specifically prohibits marinas in the “Light Industrial (I) Zone”. It defines “marina” as follows:

MARINA means an establishment where boats are stored, rented or hired, and where boats, boat motors or boat accessories are sold, repaired or refuelled and may include a building or structural for the sale of accessories or refreshments.

[59] Mr. Delarosbel’s description of a “marine facility complete with dock and gas” unequivocally falls within in definition of “marina”. To add even more certainty, Merriam-Webster’s dictionary defines “marina” as “a dock or basin providing secure mooring for pleasure boats and often offering supply, repair and other facilities.”

[60] Mr. Delarosbel may not wish to label the service wherein he stores and parks boats for his “tenants” as a marina, and he may feel that the Municipality’s characterization of this service is an “exaggeration”, but his description of the facility undoubtedly falls within both the definition in the 1981 Zoning By-law and the ordinary meaning of a marina, which was prohibited under the 1981 By-law.

[61] Can the use of a marina on this Property be saved by s. 34(9)(a) of the Planning Act? No. Milne had boats to support its industrial logging operations The marina is an entirely self-sufficient commercial service offered to TBL’s “customers,” and is clearly too remote to the logging operation, or any other industrial use, to be deemed a “reasonable evolution” under the Saint-Romuald test. In other words, the marina is a business in and of its own, and not an activity that was simply added, altered or modified from another lawful use.

[62] Thus, I find that the marina-related facilities and services offered by TBL are unlawful.

Retail sale of fuel

[63] TBL does not deny selling fuel, and Mr. Delarosbel explained in his examinations that he sells it to “customers” who have an account with TBL for their vehicles, their vessels, and as home heating fuel. According to Mr. Delarosbel, the fuel is stored in a tank that was on the property by Milne in the 1970s. Mr. Delarosbel estimates that TBL has “hundreds” of customers.

[64] TBL argues that the sale of fuel products was permissible pursuant to the 1981 By-law under the definition of "Industrial Use" as a "Bulk Sales Establishment".

[65] The “Industrial Use” definition may include “bulk sales establishments”, but it does not make any reference to the Bulk Sales Act. By definition, “bulk sales”, even in the original Bulk Sales Act enacted in 1917, which was in force in 1981, refers to the sale of stock in bulk out of the usual course of business or trade of the seller. Selling fuel to individuals for their cars, vessels and homes does not constitute the sale of “stock in bulk.” I therefore reject this argument.

[66] I also reject the submission that the fact that TBL was registered as a Fuels Safety Contractor is at all relevant to this argument. The TSSA is not a municipal authority, and this unrelated organization is bound by its own sets of standards and rules.

[67] In addition, in the 1981 By-law, “gas bar” was expressly prohibited in the “Light Industrial (I) Zone”.

[68] Thus, the only possible way to deem the sale of fuel permissible is if it can be deemed a legal non-conforming use under the Planning Act.

[69] Before 1981, Milne stored fuel to support its logging and barge operations. Can the current use of selling fuel to “hundreds” of customers just be an expansion or intensification of this permitted use? No. It is a whole other use as a commercial operation rather than an ancillary use to an industrial use.

[70] The court unequivocally agrees with TBL that the mere fact that industrial activity generates income does not automatically render a use commercial. If that were the case, industrial uses would not exist as they would be unable to generate profit. Selling a product, such as fuel, to hundreds of customers, however, never constituted an industrial use. The retail sale of fuel is purely commercial, which is defined as follows:

COMMERCIAL USE means the use of land, structure or buildings for the purpose of buying or selling commodities and supplying services.

[71] It is uncontested that Milne, and subsequently TBL, fueled its own vehicles and vessels with fuel from the tank on the Property to support its industrial operations. This was permitted as ancillary to industrial uses.

[72] This case is simply outside any fair definition of the pre-existing use and is more comparable to that of the landowner who added a landscaping business to its custom framing shop (Nepean (City) v. D’Angelo (1998), 49 M.P.L.R. (2d) 243 (Ont. Ct. (Gen. Div.))). It is, therefore, unnecessary to evaluate “neighbourhood effects”.

[73] Selling fuel to customers or tenants is not an industrial use, or an ancillary use to another lawful purpose. It is an ancillary use to a marina, which is unlawful as determined previously.

Expansion of propane dispensary service after adoption of 2006 By-law

[74] The Municipality admits that the original propane dispensary relocated to the Property in or around 1988 was lawful since the Municipality issued a building permit for this use. While this seems to run contrary to its own definition of “Industrial Use,” by issuing a permit, the Municipality acquiesced and rendered the dispensary lawful.

[75] What the Municipality disputes is the retail or service nature that the propane dispensary has adopted through TBL after 2006 since the SMA(h) zone expressly prohibited “any new development” or “building alteration”. Put differently, according to the Municipality, after 2006 the lawful propane dispensary became unlawful due to its expansion, which has since become a propane servicing business where a large number of canisters are serviced or exchanged from the Property.

[76] In his affidavit evidence, Mr. Delarosbel deposes that TBL “made a considerable investment by constructing a permanent installation for its bulk propane plant” when it relocated its operations to the Property, though no details are provided as to what this “considerable investment” consisted of, or how it functioned. In addition, in my opinion, there is no evidence to support the assertion that propane was being sold “in bulk.”

[77] TBL argues that the same size tank as originally approved by the Municipality is in use today. TBL further argues that minor structures accessory and ancillary to the propane dispensary are permitted uses. TBL relies on registration and certifications from the TSSA, but as stated previously, these are irrelevant.

[78] The difficulty for the court is the fact that there is no detailed evidence clarifying what the investment was, and when it was made exactly. The Municipality asks this court to draw adverse inferences as a result.

[79] Specifically, it argues that Mr. Delarosbel was examined and that undertakings were refused with respect to numerous questions relating to the scale and extent of the alleged unlawful uses. According to the transcripts, his position was that the uses were lawful and that the information was therefore “irrelevant.”

[80] According to the evidence, one such undertaking was to provide a copy of a work permit and a building permit for the structure that houses the propane dispensary, which would have confirmed the date of the expansion. The response given was that they were not able to locate any. Two other questions taken under advisement related to the volume of propane sales:

8. Under advisement to provide the last three years of annual quantities purchased from Moore Petroleum. Response: Propane and diesel fuel sales to the Respondent’s customers exist. Respondent contends use is lawful and permitted. Annual quantities are irrelevant to whether use is lawful.

9. Under advisement to produce a copy of the logbook. Response: Logbook [users] is irrelevant to question as to whether propane and fuel sales use is lawful.

[81] The sale of propane by TBL on the Property was permitted from 1988 to 2006. From 2006 onwards, TBL was not permitted to expand this business if an expansion required “new developments” or “building alterations.”

[82] The St-Romuald analysis would allow for an expansion of the propane business in my view, but not insofar as allowing any additional “new developments” or “building alterations”, since this was expressly prohibited by the 2006 By-law, and had to be respected.

[83] The onus was on TBL to show that any physical expansion of the building, either by way of “new developments” or “building alterations” predated the enactment of the 2006 By-law. It has not succeeded and an adverse inference by the court is justified.

[84] Thus, while the propane dispensary is lawful, selling and storing a large number of canisters as it is doing now does not comply with the requirements of the SMA(h) zone. It would be lawful to reduce its operation to the same size and level as it did before 2006, however.

Outdoor parking rental;

[85] The sketch attached to a letter authored by the MNR in 1987 demarcates a “Parking Area”. Schedule E - Permitted Uses in Zones of By-Law 81-62 does not list "Parking Area or Lot" as being exclusive to only one or more zone categories. The use as defined is then permissible in all zone categories. By-Law 81-62 establishes the right of the owner to provide parking either "free or for profit or gain".

[86] Common sense also dictates that parking would be necessary to support any industrial operations, for workers and potentially a few clients of the industrial business.

[87] TBL argues that the provision of parking for the clients of both Milne and TBL has always been a component of the use of the Property. It relies on the definition of “Parking Area or Lot” in the 1981 By-Law:

PARKING AREA OR LOT means an open area, other than a street used for the temporary parking of two or more motor vehicles as accommodation for visitors, clients, customers, residents, or employees, whether free or for profit or gain.

[88] TBL is using the parking to support its marina and its expanded propane dispensary, which is not a reasonable expansion of Milne’s logging operations. It therefore does not fall within the scope of ancillary use to support industrial activity.

[89] TBL is permitted to use the parking area to support its lawful uses, which would necessarily fall into the permitted uses. Renting parking spots for vehicles which are unrelated to the contracting business is not a permitted use.

[90] TBL admits they charge tenants and boaters a separate parking fee for each vehicle parked on the Property. If the marina is unlawful then, necessarily, this business is unlawful.

Commercial docking and mooring

[91] TBL argues that docking and mooring are an aquatic version of vehicle parking, and that, accordingly, docking and mooring are permitted on all water access properties throughout Temagami whether provided for free or for profit. This court disagrees with this overly broad and far-reaching interpretation.

[92] In applying the St-Romuald test, there is a clear absence of a link between the purpose of the original use and the existing use as it is now. For the same reasons the marina is deemed as impermissible, so is the commercial docking and mooring.

Barge rental business (barging for lawful business on Property is permitted)

[93] TBL argues that renting industrial equipment is not uncommon and that it falls within the definition of “Industrial Use” under “transportation” in the 1981 By-law. With respect, this argument must fail.

[94] The word “transportation” cannot be interpreted in isolation. It must be interpreted within the context of an industrial nature or purpose. For example, if operations related to the fabrication of railway steel or manufacturing car parts, this would fall within the definition of “industrial use,” whereas offering train rides or car rental services would not.

[95] The rental of a barge is just too remote from using a barge to support an industrial business. It is not a reasonable evolution of the logging operations and is purely of a commercial nature.

[96] Thus, the same analysis as the one applied with respect to the marina applies to the rental of barges, and it must be deemed impermissible under the Municipality’s by-laws and the Planning Act.

Retail aggregate sales (aggregate storage for construction of business is permitted)

[97] TBL argues that retail aggregate sales fall under the “Bulk Sales Establishment” definition as permitted in 1981 By-law, that it existed since the early 1980s, and that continues to this date. TBL relies on an MNR Land Use Permit that allowed, from March 31, 1983, to March 30, 1984, the installation of a commercial advertising sign on the Property.

[98] First, as discussed above, retail sales are not a permitted use on the Property, and “bulk sales” means the sale of stock in bulk out of the usual course of business or trade of the seller. There is no evidence before the court of any “bulk sales” even though this information was specifically requested by the Municipality during examinations and later refused on the basis of irrelevance by TBL.

[99] Secondly, the permit TBL filed as an exhibit was not granted to Milne, who was the sole occupant of the Property in 1983 and 1984. It was issued to “Temagami Barge Limited”, which was not operating on the Property at this time.

[100] Thus, this argument must fail, and any retail sales aggregate other than aggregate storage for TBL’s construction business is unlawful. In other words, TBL may not store construction materials for the purpose of retail sales, and may only do so for its construction business.

Outdoor storage (outdoor storage for the construction business is permitted)

[101] There was no detailed list before the court specifying what items could be stored for the construction business and what could not. It is difficult to accept, however, that dilapidating items, especially vehicles, boats and trailers as shown in photographs produced as exhibits, could be justified as useful for a construction business.

[102] Thus, while it is conceded that TBL can store items for its construction business on the Property, the photographs in evidence reveal that items stored on the Property far exceed this scope.

Scrapyard

[103] TBL argues that the Property has never been used as a scrapyard, instead submitting that any debris on the Property is “in transit” and “only stored temporarily awaiting completion of trans-loading operations.” The court agrees that temporary storage of items related to the contracting business is permitted as outdoor storage for the lawful purpose of the construction business.

[104] There is no evidence before the court detailing how long the items stored on the Property have been there, though the photos do show some vehicles, boats and trailers in a state of disrepair that would be difficult to justify as “temporary” or for construction use.

[105] Thus, the court simply confirms that only items related to the contractor business are permitted. The storage of any other debris, scrap materials, or garbage is unlawful as against zoning and property standards by-laws.

Boat repairs and barge repairs for others

[106] TBL argues that the Property has never been used for boat and barge repairs, and that “on a rare occasion, a customer might dock and have [Mr.] Delarosbel look at their motor with which they are having problems and he would offer assistance”.

[107] Thus, no one disputes that this is not a permitted use. It is agreed, however, that TBL is permitted to conduct repairs its own boats and barge on the Property.

Sewage Waste disposal

[108] It is undisputed that TBL operates a septic pump out and disposal service. TBL, however, argues over semantics by stating that this does not constitute a Waste Disposal Site. Regardless of what it is called, septic pumping and transportation of effluent into holding containers is not a permitted use under any of the By-laws as it is neither an industrial use, nor an expansion of a permitted use per the Saint-Romuald test. TBL did not even argue which permitted use this could have possibly evolved from other than to say that TBL offered these services early on in their tenure. While that may be true, just because this was a use in the late 1980s does not mean it was ever lawful. The 2006 By-law and the Planning Act only grandfather lawful uses.

[109] I also disagree that it falls within the definition of “transportation” in the 1981 By-law. The word “transportation” cannot be interpreted in isolation. It must be interpreted within the context of an industrial nature or purpose. Septic pump-out for residential properties is not an industrial use, it is a commercial service.

[110] Finally, TBL argued that it is an essential service provided for all lake users. TBL’s septic business is not the issue. The issue is that the business is being operated on property on which this use is prohibited. TBL is free to continue offering these services from a different location.

Public access to Lake Temagami

[111] TBL submits that the Property is gated and is a controlled access facility that is not open to the general public. It stresses that access is “for the sole use of the Respondents and their customers,” especially given that the propane dispensary requires a certain level of security in a public setting.

[112] Thus, it is undisputed that providing public access to Lake Temagami is not a permitted use.

Service shop and retail stores

[113] TBL admits that at one time it operated a retail store on the Property but that it was discontinued several years ago.

[114] Thus, it is undisputed that operating service shops and retail stores is prohibited on the Property.

Remedies

Injunctive relief

[115] TBL submitted that it has “been serving their customers and carrying on the current uses at the Property for over three decades.” With respect, there is no prescriptive right with respect to uses on the Property. They either had to be listed as a permitted use in the 2006 By-law or the 1981 By-law, or proven by TBL that they resulted from the reasonable evolution of a permitted use. They failed, and most of the current uses are unlawful.

[116] Having found TBL’s uses of the Property unlawful, the court must now determine if it is appropriate to grant a permanent injunction. An injunction is, of course, an extraordinary remedy, and even if an application is successful, it does not follow that an injunction will be an automatic or appropriate remedy.

[117] Given that an injunction is an equitable remedy, its granting is discretionary and subject to equitable considerations. Namely, special considerations are to be given when a municipality requests an injunction as a remedy to the enforcement of its bylaws, as it is a remedy that is statutorily available through section 440 of the Municipal Act, 2001:

Power to restrain

440 If any by-law of a municipality (…) is contravened, in addition to any other remedy and to any penalty imposed by the by-law, the contravention may be restrained by application at the instance of a taxpayer or the municipality or local board.

[118] In Gobalian v. Poxon, 2020 ONSC 6750, at paras 33-39, Justice P. Hurley provides a helpful summary of the caselaw as it relates to the intersection of injunctions as both equitable remedies and as statutory remedies with respect to the enforcement of municipal bylaws. In particular, he notes that many judges in remedying a by-law violation have applied the “RJR-MacDonald test” (RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311), while “[o]ther judges have disagreed, finding that a statutory injunction does not require consideration of irreparable harm or the balance of convenience.” The latter have disregarded “irreparable harm” and “balance of convenience” as factors on the basis that a municipality is presumed to be acting the best interest of the public and a breach of the law is already considered to be irreparable harm to the public interest (see: Regional Municipality of York v. DiBlasi, 2014 ONSC 3259, at para. 62; Allied Properties v. 1064249 Ontario Inc., 2016 ONSC 6665, at paras 6-7).

[119] I agree with the Municipality and the above-mentioned authorities that the threshold allowing for municipalities to be granted injunctive relief is especially low. An even lower threshold applies in the case of a permanent injunction since a municipality can establish “a serious issue to be tried” by simply demonstrating that the Respondents have breached a by-law (Caledon (Town) v. Darzi Holdings, 2019 ONSC 5255, at para.8).

[120] In Caledon (Town) v. Darzi Holdings, the court echoed the Ontario Court of Appeal’s view opining that statutory injunctions are typically granted to public authorities in all but “exceptional circumstances” (para. 27). Specifically, in Newcastle Recycling Ltd. v. Clarington (Municipality), at para 32, the Ontario Court of Appeal had stated:

The issue before the applications judge was whether Clarington was entitled to a permanent injunction to enforce a bylaw. It was not necessary for Clarington to lead compelling evidence that the injunction was warranted. Where a municipal authority seeks an injunction to enforce a bylaw which it establishes is being breached, the courts will refuse the application only in exceptional circumstances. (Emphasis added)

[121] Thus, while a municipality may have other remedies available besides statutory injunctions, as a public authority, it needs not exhaust all other available remedies before seeking an injunction (Township of King 2424155 Ontario Inc., 2018 ONSC 1415, at para. 28).

[122] As such, the test for granting a permanent injunction to the Applicant municipality under s.440 of the Municipal Act, 2001 is as follows:

1. The Applicant must establish a clear breach of the by-law;
2. Once the Applicant has done so, the burden shifts to the Respondents, to establish that there are "exceptional circumstances" such that the injunction should not issue;
3. The court may then issue the statutory injunction or exercise its residual discretion to decline to issue the injunction. (See National Steel Car Limited v. Arcelor Mittal Dofasco, 2022 ONSC 6742, at para 13.)

[123] TBL submits that the court should exercise its residual discretion to find a “more appropriate remedy” to that of granting immediate injunctive relief, suggesting that TBL should first be allowed to apply for a zoning By-law amendment in order to have their longstanding use of the Property recognized.

[124] With respect, the Municipality issued its first notice in 2021, and Mr. Dashiel admitted in examinations that he had done nothing to comply with a zoning contravention order. He simply disagreed that he was violating any by-laws and refused to take any steps to rectify the situation, including appealing the two 2021 orders.

[125] Within this Application, TBL failed to present any evidence to support an argument that “exceptional circumstances” warrant a remedy other than an injunction. All evidence points to the contrary. Not only does a permanent injunction appear to be appropriate, it may also very well be the only way to successfully enforce its by-law in this case.

[126] The “residual discretion” to refuse to issue an injunction must be related to equitable considerations or the public interest (National Steel Car Limited v. Arcelor Mittal Dofasco, at para. 15.) Having by-laws respected and enforced is what is in fact equitable and in the public interest.

[127] As such, there is no basis to refuse the injunction and it is entirely appropriate to grant it.

Partial closure of the Property

[128] The Municipality requests an order that the Property shall be closed to any of the unlawful uses for a period of up to two years pursuant to s. 447.1 of the Municipal Act, 2001, effective immediately.

[129] The Municipality relies upon the following provisions of section 447.1 of the Municipal Act, 2001:

447.1 (1) Upon application of a municipality, the Superior Court of Justice may make an order requiring that all or part of a premises within the municipality be closed to any use for a period not exceeding two years if, on the balance of probabilities, the court is satisfied that,

(a) activities or circumstances on or in the premises constitute a public nuisance or cause or contribute to activities or circumstances constituting a public nuisance in the vicinity of the premises;

(b) the public nuisance has a detrimental impact on the use and enjoyment of property in the vicinity of the premises including, but not limited to, impacts such as,

(ii) interference with the use of highways and other public places, (iii) an increase in garbage, noise or traffic (…) (iv) activities that have a significant impact on property values,

[130] While the court agrees that the Municipality has access to this relief (see Croplife Canada v Toronto (City), at para 37), and that it ought to be readily granted where there is evidence of nuisance, a contravention of a by-law is not in itself a “public nuisance.”

[131] A public nuisance consists of “any activity which unreasonably interferes with the public’s interest in questions of health, safety, morality, comfort or convenience.” (Ryan v. Victoria (City), [1999] 1 SCR 201, at para. 52).

[132] Except for a minor fuel spill that occurred 18 years ago, which admittedly could have occurred within the parameters of permitted uses since TBL was allowed to handle fuel for its own purposes, the Municipality presented no evidence that TBL’s unlawful operations constitute a public nuisance, including any evidence from the community showing a detrimental impact, or even impact on property values, which one would think could have been easily obtained.

[133] The only evidence presented in support of a claim of public nuisance was found in the affidavit of Municipal Law Enforcement Officer Darryl Bell, affirmed on April 12, 2022, in which he states:

The Barge Respondents are flagrantly operating a wide range of businesses that are all in contravention of the Municipality’s zoning bylaw and Property Standards By-law, which in turn is creating a nuisance for the Municipality, nearby residents and the environment. (…)

[134] He goes on to depose that constructing and operating an illegal marina with gas and sewage services without any provincial or federal approvals poses a health and safety hazard and adds:

I do verily believe that the Barge Respondents’ unlawful activities constitute a public nuisance (…)

The Municipality has received numerous complaints from members of the public regarding the illegal uses of the property.

[135] While Mr. Bell may be able to opine that TBL is creating a public nuisance, the Municipality simply did not provide admissible evidence sufficient to meet its evidentiary burden in proving that Mr. Bell’s opinion is accurate.

[136] The Municipality concedes that some of the uses carried out by TBL are permissible, and to close the Property despite the permissible uses on which TBL relies for its financial health would be disproportionate and inappropriate.

[137] As such, the request for a closure of the property, whether or partial, must be denied at this time.

Removal of “sea-can” Containers and office trailer

[138] The Municipality requests that the court order the removal of two sea-can containers sitting on the Property as well as the office trailer. The Municipality contends that the office trailer sits on a concrete foundation and that no building permit was obtained or even applied for.

[139] Mr. Delarosbel admits that he placed an office trailer on blocks for his construction business on the Property and that it has remained there since 2011. TBL argues that the Municipality is alleging a violation of the Building Code Act, 1992, S.O. 1992, c.23 (“Building Code Act”), which is improperly included in this Application. In the alternative, TBL argues that it is not a “building” as it is just a trailer on cement blocks.

[140] Even if a trailer can be moved, it does not mean that it is not a “building” within the meaning of the SMA(h) zone. In this day and age, most buildings are moveable, even when they are affixed to the ground. We must therefore turn to the 2006 By-law definition of “building” to assess whether or not the trailer contravenes the 2006 By-law:

BUILDING: shall mean any structure, whether temporary or permanent used or built for the shelter, accommodation or enclosure of persons animals, materials or equipment, other than a fence or wall.

[141] “Development” is also defined:

DEVELOPMENT shall mean the creation of a new lot, a change in land use or the construction of buildings and structures, requiring the approval under the Planning Act or the Public Lands Act, but does not include activities that create or maintain infrastructure authorized under an environmental assessment process, or works subject to the Drainage Act.

[142] While the office trailer falls within the definition of “Building”, section 7.2.4 of the 2006 By-law does not appear to capture the office trailer as it was not a “building alteration” or a “new development.” In addition, it is conceded that uses related to the contracting business, which would necessarily include an office trailer, are permissible.

[143] Interestingly, the non-compliance order issued on November 17, 2001, under the Property Standards By-law makes no mention of the office trailer or sea-can containers.

[144] As such, I am of the view that there are insufficient grounds to order the removal of the office trailer and the sea-can containers under this Application.

Order

[145] Accordingly, for reasons outlined above, this court makes the following order:

1. A permanent injunction shall issue restraining the Respondents, Temagami Barge Limited and Dashiel Lowery Delarosbel, and their employees, agents, invitees and anyone else having knowledge of the terms of the Order from using the Property for the following uses: i. A marina with a gas bar; ii. Retail sale of fuel and oil products (gasoline, diesel and oil products); iii. Expanded propane dispensary service as of February 23, 2006; iv. Commercial docking and mooring; v. Outdoor parking rental; vi. Barge rental business (barging for the lawful business on the Property is permitted); vii. Retail aggregate sales (aggregate storage for the construction business is permitted); viii. Outdoor storage (outdoor storage for the construction business is permitted); ix. Scrapyard; x. Sewage waste disposal service; xi. Boat repairs and barge repairs for others; xii. Public access to Lake Temagami; and xiii. Service shop and retail store.
2. This Order applies to the Property municipally known as 1658 Temagami Access Road, Temagami, Ontario, POH 2H0.
3. The Respondents shall pay costs to the Applicant, on a substantial indemnity basis.

[146] A bill of cost may be submitted to the court with a draft order.

Justice J.S. Richard