Reasons for Decision

Court File No.: CV-18-138167
Date: 2025-04-01
Ontario Superior Court of Justice

Between:
Gaetano Di Blasi, Applicant
and
Town of Aurora, Respondent

Appearances:
Raymond Boggs, for the Applicant
Piper Morley and Julie Lesage, for the Respondent

Heard: March 12, 2025

Justice R.E. Charney

Introduction

[1] The Applicant, Gaetano Di Blasi, is the owner of a property in the Town of Aurora (the “Property”). He purchased the Property in 1982. The Applicant is using his Property to store trailers, trucks, excavation equipment and construction materials and equipment. The Town of Aurora alleges that this use is not permitted by its zoning By-law.

[2] Mr. Di Blasi has brought this Application for a declaration that his Property is protected in its continued uses by having “Existing Non-Conforming Zoning Status”. In particular, he seeks a declaration affirming his right to use his Property for:

1. Outdoor storage of vehicles, machinery and equipment
2. Business Operations
3. Storage of heavy trucks
4. Storage of trailers and further and other uses ancillary to the above
5. Residential use

[3] The term “Business Operations” in #2 above is somewhat cryptic, and I understand it to mean “business operations” that are ancillary to the other listed uses.

[4] The Respondent, Town of Aurora, agrees that the Property may be used for residential use, but opposes the balance of the proposed declaration.

[5] There has never been any dispute that the Applicant may continue to use his Property for residential use, and so the balance of these Reasons will deal only with items #1 to #4.

[6] On May 10, 2016, Mr. Di Blasi was issued a summons alleging contravention of the Town of Aurora’s Zoning By-laws.

[7] Mr. Di Blasi was convicted of infringing the By-laws in a case heard by a Justice of the Peace on May 16, 2018, with reasons given on October 12, 2018.

[8] Mr. Di Blasi appealed the October 12, 2018 conviction to the Summary Conviction Appeal Court. Appeals from the decision of a Justice of the Peace proceed to the Ontario Court of Justice, presided over by a provincial judge: Provincial Offences Act, R.S.O. 1990, c. P.33, s. 135.

[9] Rather than proceeding with the appeal, Mr. Di Blasi commenced this Application on November 19, 2018. I am advised by Mr. Di Blasi’s counsel that the appeal has been held in abeyance pending the hearing of this Application.

[10] In my view, this was not the appropriate way to proceed. If Mr. Di Blasi wants to challenge his conviction, he must do so by way of an appeal to the Ontario Court of Justice. It is not appropriate for parties to circumvent the statutory appeal process and seek relief in the Superior Court when their appeal should be taken to the Ontario Court of Justice.

[11] Indeed, in his factum, Mr. Di Blasi often refers to himself as the “Appellant” or “Defendant/Appellant”, and much of his factum is drafted as if it were an appeal from the decision of the Ontario Court of Justice, rather than an Application.

[12] My initial inclination was to decline to hear this Application and order the parties to proceed with the appeal in the Ontario Court of Justice.

[13] I will, however, exercise my discretion to hear this Application for two reasons. The first is that the Respondent did not object to proceeding by way of Application rather than by way of appeal.

[14] In most cases, the consent of the Respondent is not sufficient to permit the parties to circumvent the statutory appeal process.

[15] In this case, however, this matter has been delayed for almost 7 years. Given this inordinate delay, I heard the Application. It is not, in my view, in the interests of justice to delay this matter any further.

Facts

Prior Proceedings

[16] The legal question raised in this Application – whether the Applicant’s storage of vehicles and construction equipment on the Property qualifies as a legal non-conforming use – has been the subject of two previous court/tribunal decisions.

[17] The Applicant argues that these decisions are not binding because they were made by the Ontario Court of Justice and the Ontario Land Planning Tribunal, and that this Court should consider the issue de novo on the basis of the record file on this Application.

[18] The Respondent acknowledges that these previous decisions are not binding on this Court, but argues that the evidence in those cases was substantially similar to the evidence on this Application, and the legal analysis and conclusion should be the same.

[19] I note that the decision of the Ontario Land Planning Tribunal was appealed to the Divisional Court. I discuss the decision of the Divisional Court below. I am, of course, bound by any legal determinations made by the Divisional Court.

Ontario Court of Justice Zoning Violation Decision

[20] The Property is located at the northwest corner of Bloomington Road and Leslie Street in the Town of Aurora. It is located within the area of the Oak Ridges Moraine Conservation Plan (the “ORMCP”) and is designated, for the most part, Natural Linkage with a smaller portion at the west of the Property designated Countryside. The Subject Property contains a Provincially Significant Wetland (“PSW”) and is also identified as having high aquifer vulnerability and being within Landform Conservation Category II in the ORMCP.

[21] Mr. Di Blasi purchased the Property in 1982.

[22] The Property is currently zoned NL-ORM (Oak Ridges Moraine Natural Linkage Area) and C-ORM (Oak Ridges Moraine Countryside Area) and Environmental Constraints in Town of Aurora ZBL 2213-78, as amended by ZBLA 4469-03. This zoning permits only limited uses including agricultural uses, forest management, conservation projects, and non-motorized trails. The zoning also specifically permits uses legally existing as of November 15, 2001.

[23] In March 2015, a By-law Enforcement Officer (the “Officer”) attended the Property in response to a complaint received regarding zoning violations. The Officer attended on the Property and observed unplated vehicles, approximately 49 trailers, RVs and boats, 4 dump trucks, and 6 pieces of construction equipment. A Notice of Violation was delivered to Mr. Di Blasi.

[24] The Officer attended the Property again on March 18, 2016 to determine if Mr. Di Blasi had complied with the Notice of Violation. He determined that there was no compliance, and that there were new commercial vehicles, unplated vehicles, trailers, boats, and RVs on the Property since his previous visit. He served Mr. Di Blasi with two Part 1 certificates of offence for the uses of “Park commercial vehicle in a residential zone” and “Park trailers in a residential zone”, both contrary to Zoning By-law 2213-78.

[25] After several further attendances on the Property, an information was sworn and Mr. Di Blasi was served with a summons to appear before the Ontario Court of Justice (OCJ) for the zoning offence.

[26] The trial proceeded in the Provincial Offences Court on May 16, 2018. Mr. Di Blasi argued legal non-conforming use as a defence. On October 12, 2018 the OCJ found Mr. Di Blasi guilty of using the Property contrary to uses permitted on property zoned NL-ORM, and he was fined $3,000.

[27] In his analysis, J.P. Jackson noted that “the only issue to be determined is whether defence has proven a legal non-conforming use”. The evidence presented at that trial was substantially the same as the evidence presented in this Application; Mr. Di Blasi called the same witnesses: himself, an employee David Thompson, and Murray Smith, who was a neighbour of the Property when he was a child in the 1970s. In dismissing the claim for legal non-conforming use, J.P. Jackson concluded:

I have heard no evidence that the use of the land to store construction vehicles and equipment was lawful at the time of the enactment of the relevant zoning restriction…In addition, the renting of the property to store recreational vehicles is a change of use. The defendant has not established a legal non-conforming use. I find him guilty of using the lands contrary to permitted uses on property zoned natural linkage Oak Ridges Moraine contrary to section 37.1 of the Town of Aurora By-law number 221378.

Land Planning Appeal Tribunal / Divisional Court Decisions

[28] Portions of the Property were expropriated by the Regional Municipality of York in 2008 and 2010 for the purpose of widening Bloomington Road and Leslie Street. The claim for compensation was heard by the Land Planning Appeal Tribunal (the “Tribunal”) in 2019 to determine what amount of compensation was owed for the expropriations.

[29] At the Tribunal hearing, Mr. Di Blasi’s evidence was substantially the same as the evidence on this Application. He testified that he purchased the Property in 1982 and since that time he had been using the Property for the storage of heavy equipment, trailers and trucks, and he had been running a construction business from the Property since the date of acquisition. He argued that the expropriated portions of the Property should be valued as commercial/light industrial with a residential component, due to alleged legal non-conforming uses existing as at the two valuation dates. The specific legal non-conforming uses alleged by Mr. Di Blasi before the Tribunal were the same as those Mr. Di Blasi is arguing on this Application. Mr. Di Blasi’s valuation expert used comparable properties that reflected that legal non-conforming status.

[30] The Tribunal found that the highest and best use of the Property at the expropriation dates in 2008 and 2010 was continuation of the existing residential and environmental lands holding use for the foreseeable future with no material opportunity for land severance: Di Blasi v. York (Regional Municipality).

[31] The Tribunal had in its evidence a planning report and oral testimony by Ms. Dale-Harris, an expert in land use planning, in which she opined that there were no legal non-conforming uses on the Property prior tothe takings. The Tribunal accepted this evidence, which it described, at para. 184, as “very thorough and comprehensive,” and proceeded to value the Subject Property based on a highest and best use of continuation of its residential and environmental lands holding use. The Tribunal specifically rejected the submission by Mr. Di Blasi that there were legal non-conforming uses and that those uses could be expanded.

[32] The Tribunal held, at para. 265:

The Tribunal has examined the land use regulatory scheme in place before the acquisition of the Subject Lands by the Claimant. From 1977 the Subject Lands were designated Rural in the Official Plan where the predominant use was for agriculture but small scale commercial uses such as farm implement or supply uses relating to the surrounding agricultural area and limited commercial uses for the travelling public. From 1978 the Subject Lands were zoned Rural General in the Town’s Zoning By-law No. 2213-78, which permitted agricultural uses, home occupations, and places of worship.

[33] And at paras. 274-276:

At the valuation days the Tribunal finds that the gravel pit use had been completed, the land filling had been finished, and the 2008 photographs by Mr. Bender show a distinct lack of construction/outside storage activity on the Subject Lands, save and except for some vehicles and trailers that appear to have been abandoned and were derelict.

Thus the Tribunal finds that highest and best use of the Subject Lands is a continuation of its residential and environmental lands holding use for the foreseeable future with no material opportunity for land severance.

The Tribunal rejects the submission that there were legal non-conforming uses and that those uses could be expanded.

[34] Mr. Di Blasi appealed the Tribunal’s decision to the Divisional Court. The Divisional Court dismissed the appeal: Di Blasi v. York (Regional Municipality), 2022 ONSC 7104. The Court held that there was no basis to interfere with the Tribunal’s finding that the uses of the property alleged by Mr. Di Blasi were not legal non-conforming uses as of the Valuation Dates. The Court stated, at paras. 18–22:

Commercial/light industrial uses have not been permitted on the property since enactment of By-Law No. 2083 of the Town of Whitchurch in 1970. These restrictions were continued in the Region’s 1974 Official Plan and continued up to enactment of the ORMCP.

The appellant purchased the property in 1982. He gave evidence that during his ownership of the property, he used it for a gravel pit, for storing construction vehicles, and as office premises for his construction business. These activities were undertaken in connection with construction projects in which he was involved on nearby properties under development.

The appellant called no expert planning evidence to establish that these uses were ever legal. On the basis of the expert evidence that was before the Tribunal, these uses were not legal at the time the appellant purchased the property and continued to be illegal to and including the Valuation Date.

The appellant testified that, prior to his purchase of the property, it had been used for storage of construction vehicles by Gary Babcock, who rented the property from a prior owner. The appellant testified that this “use” of the property began “in the 1970’s”. The appellant called no expert planning evidence to establish that these uses were ever legal. On the basis of the expert evidence before the Tribunal, these uses were not legal and there was no evidence before the Tribunal that these uses were taking place prior to enactment of the Whitchurch By-Law in 1970. Further, this aspect of the appellant’s argument would only encompass storage of construction vehicles on the property, and not the operation of the gravel pit.

The appellant’s primary claim concerned the gravel pit operation. It is uncontested that it did take place, whether the use was legal or not. The Tribunal found that this use ceased as of 2005. This finding was available to the Tribunal on the evidence before it. [Footnotes omitted.]

Legal Non-Conforming Use

[35] Section 34 of the Planning Act, R.S.O. 1990, c.P.13, authorizes the councils of local municipalities to pass zoning by-laws prohibiting, inter alia, the use of land “except for such purposes as may be set out in the by-law within the municipality or within any defined area or areas…”. Section 34(9) codifies an exception for what is commonly referred to as “legal non-conforming use”. It provides:

(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.

[36] The legal principles at issue were set out by the Divisional Court in Mr. Di Blasi’s appeal from the decision of the Land Planning Appeal Tribunal. That Court stated, at para. 16:

Where a By-Law prohibits a use on a property, the burden to show a legal non-conforming use lies on the claimant, in this instance, the appellant. To establish a legal non-conforming use, the appellant must establish that:

(a) the claimed use was established and lawful on the day of passing of a bylaw which prohibits the use; and

(b) the use has been continuous since the day the interfering bylaw was passed.

[37] The legal non-conforming use must be proven on a balance of probabilities.

[38] It is not enough for Mr. Di Blasi to prove certain uses existed at the time he purchased the Property; he must also show they were legal at that time.

[39] In this case, the specific uses at issue are those disputed uses set out in the Applicant’s Notice of Application:

i. Outdoor storage of vehicles, machinery and equipment
ii. Business Operations
iii. Storage of heavy trucks
iv. Storage of trailers and further and other uses ancillary to the above

[40] The Property is currently zoned NL-ORM (Oak Ridges Moraine Natural Linkage Area) and C-ORM (Oak Ridges Moraine Countryside Area) and Environmental Constraints in Town of Aurora ZBL 2213-78, as amended by ZBLA 4469-03. Section 37.1 of By-law #2213-78, expressly permits legal non-conforming uses. It provides:

37. Notwithstanding any other provision of the by-law to the contrary, the following provisions shall apply to all Oak Ridges Moraine Natural linkage Area (NL-ORM) Zones.

37.1 No person shall hereafter within an Oak Ridges Moraine Natural Linkage Area (NL_ORM) Zone, use any land or erect, alter or use any building or structure for any purpose except one or more of the following uses:

1. Uses legal existing as of November 15, 2001;
2. Fish Wildlife and forest management;
3. Conservation projects including flood and erosion control projects;
4. Non-Motorised trails;
5. Agricultural uses;
6. Transportation, infrastructure and utilities in accordance with Section 34.6 of this by-law and the applicable policies of the Official Plan;
7. Natural heritage appreciation;
8. Accessory uses to the above.

[Emphasis added.]

Analysis

[41] The key difference between the parties is the starting date upon which certain uses of the Property became illegal.

[42] The Applicant argues that the relevant date for “legal non-conforming use” is 1984. He takes the position that there was no municipal restriction on land use prior to that date because the first applicable By-law was passed by the Town of Aurora in June 1980, but even that By-law did not come into effect until it was confirmed by a decision of the Ontario Municipal Board (OMB) on December 6, 1984, which was two years after the Applicant purchased the Property in 1982. Prior to this, the Applicant argues, there was no By-law governing land use within the Town of Aurora and the landowner was allowed to use the land in whatever manner and capacity that he chose.

[43] The Town of Aurora argues that there was in fact a By-law prohibiting the impugned use dating back to 1970. I will return to this argument below.

[44] The Applicant’s argument that the 1984 decision of the OMB is the starting point for the legal analysis is inconsistent with the plain wording of s. 34(9) of the Planning Act, which expressly applies if “such land, building or structure was lawfully used for such purpose on the day of the passing of the by-law”. Thus, it is “the day of the passing of the by-law” and not the day that the by-law is approved by the OMB that governs the application of this provision: Central Jewish Institute v. City of Toronto, [1948] SCR 101, per Rand J., at p. 110.

[45] Thus, even if I were to accept the Applicant’s position that the 1980 By-law was the first restriction on the use of the land, the legal non-conforming use would have to pre-date the June 1980 passing of the By-law.

[46] If I accept the Town of Aurora’s position that the uses described by the Applicant have not been permitted since 1970, the 1980 date is irrelevant.

[47] The Applicant’s evidence is that since purchasing the Property in 1982 he has used it for storage of heavy equipment and trailers and the carrying on of a construction business. This business included the construction of a nearby subdivision as well as the construction of homes and industrial structures around the GTA. It also entailed filling land on the property in question with the use of heavy construction equipment, bulldozers, excavators, and backhoes. Sand was excavated from the Property with heavy equipment such as bulldozers, excavators, and backhoes and was moved with dump trucks to the fill-in around the basements of the subdivision that the Applicant was constructing on the adjacent subdivision. Large semi-truck trailers and Recreational Vehicle Trailers (RVs) were used throughout this time for the storage of materials, the storage of the trailers themselves and as mobile offices and washrooms.

[48] All of the heavy machinery including bulldozers, excavators, backhoes, dump trucks, flatbed trailers, RV trailers and semi-truck trailers were used by the Applicant from the time of his taking of possession of the land until the present time, and all of this equipment was continuously stored on site.

[49] Mr. Di Blasi’s affidavit states that he purchased the property in 1982 with the express intention of using it as a base to operate his construction business and to store heavy equipment and trailers, and that he would not have purchased it if he was not allowed to use the land for that purpose.

[50] Mr. Di Blasi was also aware that there was a sand and gravel pit operating on the site since the 1950s. This operation required the use of heavy equipment to dig and remove the gravel. In 1997 Mr. Di Blasi used the pits that were already present on the property to deposit dirt and fill from the nearby subdivisions he was building. He had fill permits from the Town of Aurora to fill the pits.

[51] Another witness for Mr. Di Blasi was his employee, Dave Thompson, who worked for Mr. Di Blasi since 1984. His affidavit states that throughout the 1980s and continuing until some time “into the 2000s” the fill operations continued at the Property and construction equipment including bulldozers, excavators, front-end loaders, dump trucks, trailers and bobcats were stored on the Property. After the fill operations were completed (he believes in 2005), the Property was rented as a storage area for recreation trailers, hydro bucket trucks and the same kind of heavy equipment used in construction.

[52] The Applicant argues that a temporary interruption in the existing non-conforming use does not end the existing non-conforming status, provided the owner intended to continue to use the property for the same purpose and no discontinuance of the pre-existing non-conforming use occurred: Township of Uxbridge v. Timbers Brothers Sand and Gravel Ltd., [1973] 3 O.R. 107; O’Sullivan Funeral Home Ltd. v. Corporation of Sault Ste. Marie and Evans, [1961] O.R. 413.

[53] Moreover, provided the Property was used for that purpose prior to the enactment of the By-law, the extent of the use is immaterial, and the property owner is permitted to expand the scope of its activities, provided the property is put to the same use: Central Jewish Institute, at p. 105. The legal non-conforming use applies to the entire property, and not just to the part that was previously used.

[54] There are, however, limits to expansion or intensification. At some point expansion turns into a different use. As the Supreme Court explained in Saint-Romuald (City) v. Olivier, 2001 SCC 57, at para. 25:

In general, merely continuing the precise pre-existing activity, even at an intensified level, is clearly protected, but the intensification may be of such a degree as to create a difference in kind. A family farm which has a few pigs on the fringe of a town may continue as a legal non-conforming use, but the result may be otherwise if it is sought to expand its pork operation into “factory in the country” type intensive pig farming. While in one sense the “use” has continued, in another sense its character has been so altered as to become, in terms of its impact on the community, an altogether different use.

[55] In a case of this type, Justice Binnie stated, at para. 34, that “the Court’s objective should be to maintain a fair balance between the individual landowner’s interest and the community’s interest”:

The landowner overreaches itself if (i) the scale or intensity of the activity can be said to bring about a change in the type of use, as mentioned above, or if (ii) the addition of new activities or the modification of old activities (albeit within the same general land use purpose), is seen by the court as too remote from the earlier activities to be entitled to protection, or if (iii) the new or modified activities can be shown to create undue additional or aggravated problems for the municipality, the local authorities, or the neighbours, as compared with what went before. The factors are balanced against one another.

[56] See also: Cobalt (Town) v. Coleman (Township), 2019 ONCA 134, at para. 25.

[57] As indicated, the Town of Aurora takes the position that the relevant date for establishing legal non-conforming use is 1970, and that the uses the Applicant claims to be legal non-conforming uses have in fact been illegal since September 8, 1970.

[58] The Town of Aurora was formed in 1971 with the establishment of the Region of York. Prior to that, the Property was within the municipal boundary of the former Township of Whitchurch. On September 8, 1970, the Town of Whitchurch’s Restricted Area Bylaw No. 2083 (“By-law 2083”) came into effect. By-law 2083 zoned the Subject Property “Rural Area”, which permitted agricultural uses, institutional uses, residential uses (single family dwellings), and an accessory building for a farmer if the property was 25 acres or more. No commercial uses were permitted on the Subject Property pursuant to By-law 2083.

[59] Subsequent zoning By-laws were later enacted by the Town of Aurora, up until the current zoning By-law (ZBL 2213-78 enacted in 1978, as amended by ZBLA 4469-03). None of these subsequent zoning By-laws ever permitted any commercial uses, including outdoor trailer storage or a construction business.

[60] I accept the Town of Aurora’s position that the starting date for the legal non-conforming use analysis is September 8, 1970. This position is supported by the expert evidence of Ms. Dale-Harris filed on this Application and is consistent with the decision of the Divisional Court (at para. 21) in Mr. Di Blasi’s appeal of the Land Planning Appeal Tribunal decision.

[61] The Region of York has produced aerial photographs of the Property dating back to 1954. These photographs confirm that the only commercial (non-agricultural) use of the Property prior to 1970 was the gravel pit/extraction uses.

[62] There is no evidence that the Property was used for construction or for outdoor equipment or trailer storage (except as ancillary to the gravel extraction use), as of September 8, 1970. The 1978 aerial photograph does not show any structures or equipment on the Property except for a house and barn on the eastern portion of the Property. No commercial uses are indicated aside from gravel pit/extraction.

[63] The Town of Aurora acknowledges that, prior to 1970, the gravel pit/extraction was a legal non-conforming use. The Applicant has provided several dates when the use of the gravel pit stopped, but all range from 2005 to 2007. A permit for the fill use from Lake Simcoe Region Conservation Authority expired on October 31, 2007. The gravel pit has not been in use since at least 2007.

[64] I agree with the Town of Aurora that this is not a “temporary interruption”. It is a discontinuance, and no longer qualifies as a “continuous” use. Accordingly, the Property may no longer be used as a gravel pit/extraction enterprise.

[65] I also accept the Town of Aurora’s position that outdoor storage of heavy vehicles, machinery and equipment and the storage of trailers does not qualify as an extension or intensification of the previous legal non-conforming use. While some heavy equipment and trucks were no doubt used to extract gravel or fill the gravel pits, these vehicles and equipment were ancillary to the use of the Property as a gravel pit, and these uses would cease to be legal non-conforming once the pit operations ceased.

[66] The use of the Subject Property for the storage of trailers, construction equipment, and commercial vehicles is a recent use. The aerial photos do not show any construction equipment, trucks or trailers being stored on the Property until 2013, when approximately 5 small trailers can be seen. The aerial photos taken in 2014 show approximately 30 trailers on the Property. The 2015 aerial photo shows approximately 50 trailers. There is no suggestion that any of these trailers or equipment were related to the gravel pit operations, which had ceased by 2007.

[67] In my view, a gravel pit is not the same kind of business as leasing outdoor space to store construction equipment, heavy vehicles, machinery and trailers. This is an altogether different use: The Municipality of West Nipissing v. Lafond, 2017 ONSC 3097, at paras. 44–48.

Conclusion

[68] The evidence on this Application was substantially the same as the evidence before the Ontario Court of Justice and the Land Planning Appeal Tribunal discussed above. Not surprisingly, I have come to the same conclusion.

[69] The fundamental flaw in the Applicant’s position is his position that the relevant date for “legal non-conforming use” is 1984. The Respondent has clearly demonstrated that the correct date is September 8, 1970, when the Town of Whitchurch’s Restricted Area By-law No. 2083 came into effect. The Applicant has failed to establish that the claimed uses were established and lawful on the day of passing of that By-law or that the use has been continuous since the day the By-law was passed.

[70] For these reasons, the Application is dismissed.

[71] The parties have agreed that costs should be awarded to the successful party in the amount of $20,000, all inclusive. Costs to the Respondent as per this agreement.

Justice R.E. Charney
Released: April 1, 2025