Reasons for Judgment
Court File No.: CV-23-00001315-0000
Date: 2025-07-16
Ontario Superior Court of Justice
Between:
J. Michael Evans, Appellant
Scott Hutchison and Sarina Nezhadian, for the appellant
– and –
The Chief Building Official of the Township of Muskoka Lakes, Respondent
Michael Sirdevan, for the respondent
Heard: January 17, 2025, at Barrie, by video conference
S.T. Bale:
Introduction
1Michael Evans owns two islands located on Lake Joseph, in the Township of Muskoka Lakes: Elsinore Island and Harry Island. They are connected by a wooden bridge. At the present time, there is a cottage on Elsinore Island and a boathouse on Harry Island.
2Evans applied for permits for the construction of a dwelling and septic system on Harry Island. The chief building official denied both permits.
3The dwelling permit was refused because, although zoned waterfront residential, Harry Island is only 1.12 acres. Under the township zoning bylaw, no new structure or building may be constructed on an island, unless the lot is an existing lot of record. The parties agree that Harry Island does not meet the requirements to be considered a lot of record, because it is less than two acres. The septic permit was denied because the proposed setback of the septic system does not comply with the setback requirements of the bylaw.
4Evans now appeals to this court under s. 25(1) of the Building Code Act. With respect to the refusal of the dwelling permit, he argues that the second story of the boathouse was used for dwelling purposes prior to October 1988 when the township’s first comprehensive zoning bylaw came into effect, and continued thereafter; and that as a result, use of Harry Island for dwelling purposes is a legal nonconforming use.
5In the alternative, Evans relies on a provision of the zoning bylaw which he says provides the chief building official with discretion to deem an island to conform with the two-acre island size requirement, despite it being undersized. He argues that the chief building official improperly fettered his discretion in failing to consider whether Harry Island should be deemed to conform. He submits that I should exercise that discretion under s. 25(4) of the Building Code Act which provides that on an appeal, a judge may affirm or rescind the order or decision from which the appeal is taken and take any other action that the judge considers the chief building official ought to take, and for that purpose, substitute his or her own opinion for that of the chief building official.
6With respect to the refusal of the septic permit, Evans argues that the proposed setback complies with the Building Code, and that under s. 35(1) of the Building Code Act, the Act and Building Code supersede municipal bylaws respecting the construction or demolition of buildings.
Legal Nonconforming Uses
7Section 34(9) of the Planning Act provides:
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;
8In Feather v. Bradford (Town), 2010 ONCA 440, the court held that to prove a legal nonconforming use, a party must prove:
- that the use of the land, building or structure was lawful at the time of the enactment of the relevant zoning restriction; and
- that the previously lawful use has continued thereafter.
9In the present case, the issue is whether any historical residential use of the boathouse continued up until the date when the township’s first comprehensive zoning bylaw came into effect, and thereafter until Evans submitted his building permit application.
Evidence of Historical Residential Use of the Boathouse
10William Robert Johnston purchased the two islands in 1883, and the construction of a five-bedroom cottage on Elsinore Island was completed in 1887. In 1928, a two-storey boathouse was constructed on Harry Island and was used to house a 31-foot Ditchburn launch.
11In support of this appeal, the appellant filed an affidavit sworn by William Johnston’s great granddaughter, Kimberley Johnston, and she was cross-examined on the affidavit. She says that she spent three or four weeks each summer at Elsinore from the time she was a baby until 1987 when her family sold the islands to John Grand. At the time of sale, she would have been 18 or 19 years old. She is now 57.
12Kimberley says that as a child, she would play on the second story of the boathouse. She says that there was a balcony, but you didn’t dare step on it, and at some point, it disappeared. She says that her family would shoot clay pigeons from the door to the balcony. She says that there was a tool bench with things on it for the boat and a disassembled iron bed leaning up against the wall. She says that the room was unfurnished and pretty much empty. She never slept there and never saw anyone else sleep there.
13In order to obtain historical information about her family’s use of the boathouse, Kimberley spoke with her aunts Catherine and Margo, and with her father. She said that they would have gotten their information about what had gone on in the 1920s from her grandparents. She allowed that her father “has memory issues.”
14Kimberley says that her aunt Catherine’s recollection is that the family employed a boatman and gardener named Pat who worked for the family for about five years in the 1920s. In the summer cottage seasons, Pat stayed on the second story of the boathouse. There was no bathroom, kitchen plumbing or electricity. Pat used an outhouse on Harry Island and would bathe in the lake. Kimberley remembers walking around Harry Island with her father and seeing the remnants of the outhouse. She has no information that anyone other than Pat slept or lived in the boathouse.
15In addition to Kimberley’s affidavit, Evans relies on an excerpt from a book titled Old Muskoka: Century Cottages & Summer Estates, by Liz Lundell, published in 2003. In a chapter about Elsinore, the author in describing the boathouse includes: “[s]taff quarters were incorporated above the launch slip.”
16John Grand owned Elsinore and Harry islands from 1987 until 2020 when he sold them to Evans. In his affidavit, he said that throughout his ownership, the upper level of the boathouse was used only as a storage facility. On cross-examination, he agreed that during his ownership, he made no changes to the upper level of the boathouse that would have affected his ability to use it for sleeping purposes. However, he said that he had used it only to store bed frames, among other things.
17Grand had been interviewed by Liz Lundell during the writing of her book. When asked on cross-examination whether she was correct that staff quarters were incorporated above the launch slip, he said that he had no knowledge one way or the other (the boathouse had been built before his time) and that the sentence to that effect in her book was Ms. Lundell “sort of putting words in my mouth.”
Analysis
Jurisdiction and Standard of Review
18Under s. 25(1) of the Building Code Act, a person who disagrees with a decision of a chief building official may appeal the decision to the Superior Court. Under s. 25(4) of the Act, a judge may affirm or rescind the order or decision and take any other action that the judge considers the chief building official should, and may substitute his or her opinion for that of the chief building official.
Legal Nonconforming Use
19Evans acknowledges that it has been a long time since the upper level of the boathouse was used for residential purposes. However, he argues that the issue is not whether there has been a continuous use, but rather, whether the use has somehow been extinguished or abandoned in a way that manifested the owner’s intent to give up the right to use the property for residential purposes. He argues that a legal non-conforming use will not lapse, absent evidence of an intention contrary to that use, and that in the absence of such an intention, it is sufficient that the upper level of the boathouse remained capable of being used for residential purposes.
20Counsel for Evans contrasts two cases to illustrate the point: O’Sullivan Funeral Home Ltd. v. Sault St. Marie, [1961] O.R. 413; and Harrison v. Corporation of the Township of North Dumfries, 2022 ONSC 845.
21In O’Sullivan Funeral Home, the court found that a legal non-conforming use as a funeral parlour continued in a residential zone, because the building continued to be owned by an undertaker and remained equipped to hold funerals. Even though no funerals had been held for 11 months, the property was not used for any other purpose or converted back to a residential use. During the period of non-use, wallpaper suitable for funerals was put on the walls and the place was re-wired for funerals. These alterations supported a finding that during the period of non-use, the owner had intended to continue to use the building as a funeral parlour.
22Harrison concerned an industrial machine shop on a property zoned residential. The owner died in 1995 and by 2006, his widow had sold most of the valuable equipment in the shop. The property was sold, and the new owners sought a declaration that the industrial use of the property was legally nonconforming. The Court found that there was no legal non-conforming industrial use, because the widow had demonstrated an intention to dismantle and discontinue the use by selling the machine shop equipment. In addition, the deceased’s daughter testified that neither she nor her mother had any machine shop experience and that neither had an intention to use, or to allow others to use, her father’s equipment.
23Counsel for Evans argues that unlike in Harrison, there is no evidence that any owner of Harry Island has ever had an intention to dismantle or discontinue the residential use or done anything inconsistent with that use. Rather, as with the funeral parlour in O’Sullivan, the legal non-conforming dwelling use in the upper level of the boathouse has continued, because that use has always been possible.
24I agree with Evans that where there is a period of non-use, the period of non-use may be explained by evidence supporting the owner’s intention to continue the use. However, I do not agree that in order to find that the use has lapsed, there must be evidence that the owner intentionally abandoned the use. Rather, the law is that where there is a period of non-use, a legal nonconforming use will lapse in the absence of an intention on the part of the owner to continue the use. Similarly, where the asserted use of the property has ceased before the date that the zoning by-law comes into effect, a legal nonconforming will not be created, in the absence of an intention on the part of the owner to continue the use.
25In Haldimand-Norfolk (Regional Municipality) v. Fagundes, para 17, the court referred with approval to the reasons of the Ontario Municipal Board in 572989 Ontario Inc. v. North York, [1997] O.M.B.D. No. 976 concerning a parking lot which had not been used as such, except casually, for a period of three years. In that case, the board noted that in cases where the court or board had found that a use had continued despite a vacancy, there was some reasonable explanation for the vacancy or some circumstance at least partially outside the owner’s control that temporarily prevented the use. There were two necessary elements to establish bona fide use: an intention to continue the use, and the continuation of the actual use so far as was possible in the circumstances.
26In Forbes v. Caledon (Town), 2021 ONSC 979, para 10, the court states, citing Fagundes, that “[a] legal non-conforming use has continued if there is an intention to continue the use and the actual use continues so far as possible in all the circumstances of the case.”
27In Celinski v. Lakehead Rural Planning Board, 2022 ONSC 5937, para 54, the court said that “where it is argued that an otherwise protected non-conforming use has been interrupted, to qualify as a legal non-conforming use, an intention to continue the use must be found together with the continuation of the actual use so far as it is possible in the circumstances.” In that case, the court found that the owner’s intention to use the property for aggregate resource extraction had been consistent during the period of non-use. Work at the property had been suspended because of the introduction of new licensing requirements which required the owner to apply for and obtain a new licence.
28Both O’Sullivan Funeral Home and Harrison are consistent with the principles set out in Fagundes, Forbes and Celinski. In fact, O’Sullivan Funeral Home is cited in Fagundes in support of those principles.
29Evans cites Peacock v. Norfolk (County) Chief Building Official, para 68, where the court says that “it has been held that commitment to a use is equivalent to a use for the purpose of the lawful non-conforming use provisions of the Planning Act.” He says that “[p]reservation of the boathouse in its original condition as a living space obviously demonstrates a commitment to maintain the dwelling use in the Boathouse.” I disagree. It does not follow from the fact that there is a space in the upper level of the boathouse that someone could sleep in, that Grand was committed to using that space for residential purposes. How was he to remove the space or make it unsuitable for sleeping? He used it for storage, a purpose for which it was suited. It is not difficult to believe that he had no use for it as living space – it had no electricity or running water and its associated toilet facilities consisted of an outhouse which when Kimberley walked the island with her father consisted of “remnants”.
30In the present case, there is no evidence of a residential use of the boathouse since the late 1920s or early 1930s, and no evidence that any owner intended to continue the residential use. In fact, the evidence is to the contrary. John Grand owned Elsinore and Harry islands from 1987 to 2020 when he sold them to Evans. His evidence is that during those 33 years, the boathouse was used solely for storage. Accordingly, while I can understand that use of the boathouse for sleeping could be expected to be intermittent, as a result of the long period of non-use, both before and after enactment of the zoning by-law, together with the absence of any evidence of an intention to continue that use on the date of enactment or afterward, Evans has not established the existence of a legal nonconforming use.
31Counsel for Evans distinguishes between the verb “use” and the noun “use”. He argues that something can have a use even when it is not being used for that use. For example, he says that if a boathouse doesn’t have a boat in it for 10 years, it is still a boat house, and that the same applies to a living space. He says that a use is a thing that something is capable of being used for. He says that Grand is clear that he never did anything that would evidence an intention to do anything different with the property – he simply didn’t take advantage of the fact the upper level could have been used for sleeping purposes. However, as set out above, the law requires actual use, subject to the period of non-use criteria set out in Fagundes, Forbes and Celinski.
Discretion to Deem Harry Island to Comply with the Lot-Size Requirement
32Evans argues that the chief building official had a residual discretion under section 4.1.3.4 of the zoning bylaw to deem Harry Island to conform with the two-acre island requirement, and that he erred in law by disregarding that discretion. I disagree, for the following reasons.
33Section 4.1.3.1 of the bylaw provides that “[n]o new structure or building may be constructed on a lot unless the lot complies with the appropriate section of the existing Lot of Record provision” (emphasis original).
34Section 4.1.3.4 of the bylaw provides that “[w]here a lot has a lesser lot frontage or lot area than is required, it may be deemed to conform. (Reference the lot of Record Provision, Section 3.4)” (emphasis original).
35Section 3.4.1 of the bylaw, under the heading “Existing Undersized Lots of Record” provides that “[w]here a lot, having a lesser lot frontage or lot area than is required by this By-law”, it “shall be deemed to conform with the lot frontage and lot area requirements of this By-law”, provided that it meets the requirements set out in the section.
36These sections contain no reference to any discretion to be exercised by the chief building official. Rather, section 4.1.3.4, in saying that a lot may be deemed to conform, refers to the deeming provision in section 3.4.1 which the parties agree does not apply to Harry Island because it is not in excess of two acres.
37Section E4.6 of the township official plan provides the following in relation to islands that do not exceed two acres:
Undeveloped islands less than 0.8 hectares (1.97 acres) shall not be used for residential purposes and shall be limited to a picnic shelter and a dock, or existing development as of the date of adoption of this Plan. Notwithstanding the above, the construction of a dwelling and accessory uses on islands that are slightly less than 0.8 hectares (1.97 acres) in size may be permitted through an amendment to the implementing Zoning By-law and through this process, the following matters shall be considered ….
38It therefore appears that under the official plan, a zoning bylaw amendment is required for development on an island of less than two acres. Under s. 24(1) of the Planning Act, a township’s bylaws must conform with the official plan. An interpretation of the zoning bylaw to permit the chief building official to deem an island to comply, without a zoning bylaw amendment, would not conform with the official plan.
39I also note that sections 3.4.1 and 4.1.3.4 apply only to lots “having a lesser lot frontage or lot area than is required.” Those requirements are a lot frontage of 100 feet and an area of 15,000 square feet (.34 acres) - Harry Island complies with both.
40However, if I am incorrect in my interpretation of the zoning bylaw, and there is a discretion under section 4.1.3.4 which I am entitled to exercise under s. 25(4) of the Building Code Act, I would not exercise that discretion in the circumstances of this case.
41In support of his argument that I should exercise my discretion and deem Harry Island to conform with the by-law, Evans says that there are 90 islands in the township under two acres with cottages, 70 of which are smaller than Harry Island. However, as pointed out by counsel for the township, I do not have sufficient information about those islands: some may be legal nonconforming, some may have obtained a zoning bylaw amendment, and some may simply be unlawful uses.
Septic Permit
42Evans argues that the chief building official erred in law in refusing a septic system permit despite compliance with the applicable 15 metre setback requirement in the Building Code, and improperly applied the 30-metre setback requirement in the zoning by-law. I agree. Section 35(1) of the Building Code Act provides: “This Act and the building code supersede all municipal by-laws respecting the construction or demolition of buildings.” Under s. 1(1)(c.1), “building” is defined to include a sewage system. I also note section E4.5 of the official plan specifically refers to “a septic system that meets current Building Code regulations” as one of the conditions for approval of the construction of buildings and structures on lots that do not meet the minimum requirements of the zoning bylaw.
Disposition
43For the reasons given, the appeal from the chief building official’s refusal to issue a building permit is dismissed, and the appeal from his refusal to issue a septic permit is allowed.
Released: July 16, 2025