


COURT OF APPEAL FOR ONTARIO

CITATION:
Donnell v. Joseph, 2012 ONCA 240

DATE: 20120417

DOCKET: C54577

Cronk and Epstein JJ.A. and Strathy J. (
ad
    hoc
)

BETWEEN

Mary Donnell

Applicant (Appellant)

and

Wayne
    Joseph and Kim Joseph, carrying
    on business as WJ Moving & Storage and The
    Corporation of Norfolk County

Respondents (Respondents in Appeal)

Paul Amey and Heather Hall, for the appellant

Richard A. Wellenreiter, for the respondents, Wayne
    Joseph and Kim Joseph

Mark Abradjian, for the respondent, The Corporation of
    Norfolk County

Heard: March 23, 2012

On appeal from the judgment of Justice P.B. Hambly of the
    Superior Court of Justice, dated October 24, 2011, with reasons reported at
    2011 ONSC 6307.

Cronk
    J.A.:

[1]

The appellant, Mary Donnell, appeals from the dismissal of her
    application for declaratory and injunctive relief in respect of alleged
    infractions by the respondents, Wayne and Kim Joseph, of land use zoning and
    sign by-laws passed by the respondent municipality, the Corporation of Norfolk
    County (the County).  At the conclusion of oral argument by the appellant, this
    court dismissed the appeal, with reasons to follow.  These are those reasons.

I.        Background

[2]

Mr. and Mrs. Joseph operate a moving business from a single family
    dwelling on a property located in the County, near the Town of Simcoe,
    Ontario.  They also reside in the dwelling.  The property is zoned for
    agricultural uses under the Countys applicable zoning by-law, By-law No. NW 1-2000
    (the zoning by-law).

[3]

Section 10 of the zoning by-law permits a home occupation or a home
    industry to be conducted in an agricultural zone, subject to certain
    conditions.  The Josephs maintain that their moving business constitutes a
    home occupation within the meaning of that term under the zoning by-law, such
    that the operation of their moving business, in the manner conducted by them,
    is a permitted land use under the zoning by-law.

[4]

The term home occupation is defined under s. 2.70 of the zoning by-law
    as meaning, in part, an occupation, personal service, business, arts and craft
    or profession that is carried on as a secondary use entirely within a
    dwelling unit provided the proprietor carrying on the activity resides within
    such dwelling unit.  Under s. 3.17 of the zoning by-law, any home occupation is
    subject to certain conditions, including:

a.

there shall be no goods, wares or merchandise ... offered or exposed for
    sale or rent on the premises;

...

c.

only one
    employee shall be permitted;

....

e.

no home occupation shall occupy any portion of an accessory building.

[5]

Ms. Donnell is Mr. Josephs former spouse.  She operates a moving
    business in the County, in competition with the Josephs business.

[6]

Ms. Donnell maintains that the Josephs operation of their moving
    business contravenes the zoning by-law because it is not carried on entirely
    within a dwelling unit on their property, as required under the definition of
    a home occupation.  More particularly, she argues that the following aspects
    of the Josephs moving business fall outside the definition of a home
    occupation because they are carried on outside the Josephs dwelling unit:

(1)

the
    storage of packing materials in a shipping container or sea bin on the
    property;

(2)

the
    parking of two moving vans on the property, when the vans are not in use to
    move customers;

(3)

the
    parking of employees motor vehicles on the property, when the employees are
    not engaged in moving customers; and

(4)

the
    conduct of daily safety and related inspections of the moving vans.

[7]

Ms. Donnell further submits that a sign erected by the Josephs regarding
    their moving business, positioned near a public highway at the entrance to
    their property, fails to comply with the size and content requirements of the
    Countys By-law No. 2009-66 (the sign by-law).

[8]

The application judge considered, and rejected, Ms. Donnells claims
    that the above-described aspects of the Josephs moving business and their
    business sign contravened the Countys zoning and sign by-laws.

[9]

Ms. Donnell appeals.  For the reasons that follow, I would dismiss the
    appeal.

II.       Alleged Zoning By-law Infractions

[10]

I
    begin with the applicable standard of review.  In order to determine whether
    the challenged aspects of the Josephs moving business breached the zoning
    by-law, the application judge was required to interpret the relevant provisions
    of the zoning by-law and to apply those provisions to the facts, as established
    by the evidentiary record before him, concerning the Josephs operation of
    their moving business on their property.  This task involved a question of
    mixed fact and law.

[11]

Accordingly,
    the application judges ruling on the alleged zoning by-law infractions
    attracts deference from this court.  Unless the application judge made some
    extricable error in principle in his interpretive analysis or in his
    application of the zoning by-law, there is no basis for appellate interference
    with his decision, absent palpable and overriding error:
Housen v.
    Nikolaisen
, [2002] 2 S.C.R. 235, at paras. 26 to 37.

[12]

In
    my view, Ms. Donnells zoning by-law challenge fails for two reasons.  First,
    her zoning by-law-related complaints are undercut by the application judges
    numerous factual findings regarding the Josephs conduct of their moving
    business on their property.  His key factual findings included the following:

(1)

the
    Josephs moving business is a personal service administered from a small office
    located in the single family dwelling unit on the Josephs property, in which
    the Josephs also reside;

(2)

the
    Josephs moving business is offered to customers off Waynes property;

(3)

Kim Joseph
    is the only employee of the business who works on the property.  Her work is
    performed from the office located in the family dwelling unit;

(4)

the
    Josephs employ two other individuals in their business. These employees park
    their vehicles on the property when they are working off-site with customers. Their
    work in assisting customers is performed off the property;

(5)

a shipping
    container or sea bin consisting of four compartments is located on the
    property. The Josephs store packing materials in one of the four compartments. 
    These packing materials, although stored on the property, are sold off the
    property to customers or otherwise used by the Josephs in the course of moving customers
    at venues located off the property;

(6)

the
    parking of the moving vans and employee vehicles on the property was approved
    by the responsible County building official on the basis that these vehicles
    were not being used for work carried out on the property; and

(7)

the daily
    safety inspections carried out on the Josephs moving vans were not
    significant.

[13]

Virtually
    all these factual findings are uncontested.  They were open to the application
    judge on the evidentiary record before him.  Based on these findings, the
    application judge concluded that the definitions of home occupation and home
    industry under the zoning by-law were satisfied.

[14]

Ms.
    Donnell argues that the application judge erred by referencing the definition
    of home industry under the zoning by-law and by holding that the impugned
    features of the Josephs business met the requisite elements of that term, as
    defined under the by-law.  I agree.

[15]

However,
    this error is irrelevant.  The Josephs do not invoke the concept of a home
    industry to defend their business activities on their property.  Rather, before
    both the application judge and this court, the Josephs rely on the home
    occupation use permitted under the zoning by-law to contend that their business
    activities on their property do not breach the zoning by-law.

[16]

Ms.
    Donnell argues that the identified aspects of the Josephs business,
    above-described, are contrary to the conditions specified under the zoning
    by-law for a home occupation.  I disagree.

[17]

On
    the application judges findings, described above: (1) the activities of the
    Josephs moving business are centred on two geographical areas: the office
    located in the dwelling house on the Josephs property and customer venues
    situated off the property; (2) only one employee works in the business on the
    property; (3) no retail sales or leases of goods, wares or other merchandise
    are carried out on the property; and (4) no part of the Josephs moving
    business is actively carried on from or occupies any portion of an accessory
    building.  Thus, the pertinent conditions applicable to a home occupation as
    specified under the zoning by-law are satisfied.

[18]

I
    recognize that the views of the Countys responsible building official
    concerning the meaning of the relevant provisions of the zoning by-law and
    their application to the Josephs use of their property are not determinative
    of whether the challenged activities contravene the zoning by-law.  But in this
    case, there is a concordance between the application judges factual findings
    and the conclusions of the Countys building official: the Josephs challenged
    activities do not offend the zoning by-law.

[19]

Ms.
    Donnell points out that under the definition of home occupation set out in s. 2.70
    of the zoning by-law, a home occupation must involve a secondary use of a
    property 
entirely
within a dwelling unit in which the proprietor
    resides (emphasis added).  She contends that, in making his critical findings,
    set out above, the application judge erred by ignoring or misapprehending the
    plain meaning of the word entirely in this definition.

[20]

Again,
    I disagree.  Apart from administrative aspects of the Josephs business, which
    are carried out in the office in their family dwelling, the activities of the
    Josephs moving business are conducted off-site  that is, off their property. 
    That the Josephs allow vehicular parking on their property, and store materials
    on the property that are then sold or used off the property, does not cut
    against this conclusion.  Further, only one employee works on the property.

[21]

In
    these circumstances, in my opinion, the challenged aspects of the Josephs
    business are, at the highest, tangential activities, carried out solely for
    convenience, that form no essential part of the Josephs actual moving
    business.  I do not think that they can be said to constitute part of the
    Josephs moving business in any meaningful sense.  On this ground alone, I
    would dismiss Ms. Donnells appeal regarding the Josephs alleged zoning by-law
    infractions.

[22]

In
    my view, there is also a second, important basis on which Ms. Donnells appeal
    from the application judges zoning by-law ruling founders.

[23]

In
    her notice of application, Ms. Donnell sought mandatory injunctive relief
    against the County to compel it to restrain the Josephs from allegedly
    contravening the zoning and sign by-laws.  The sole ground advanced for this
    relief, both in Ms. Donnells notice of application and in her supporting
    affidavit, was the Countys failure to enforce the by-laws against the Josephs. 
    No express assertions of bad faith or unreasonable conduct by the County were
    made.  However, at the outset of the hearing before the application judge, Ms.
    Donnell abandoned her claim for relief against the County.

[24]

Subsequently,
    in her factum on appeal, Ms. Donnell appeared to renew her complaint that the
    County had wrongly failed to enforce its by-laws against the Josephs.  It was
    not until the commencement of oral argument before this court that Ms.
    Donnells counsel clarified that this complaint was relevant only to Ms.
    Donnells claim for relief from the costs award made by the application judge
    in favour of the County.  Thus, in effect, Ms. Donnell again abandoned her
    allegation of wrongful conduct by the County at the outset of a court hearing,
    save with respect to the issue of costs.

[25]

However,
    Ms. Donnell did not seek leave to appeal the application judges costs award in
    favour of the County.  Nor did she seek any relief against the County in her
    Notice of Appeal.

[26]

In
    the result, Ms. Donnells late clarification of her position regarding the
    County came only after the County, quite understandably in my view, had filed a
    detailed factum on appeal, responding to the suggestion that it had acted
    improperly in its enforcement decisions concerning the zoning and sign by-laws.

[27]

I
    make two points regarding this conduct.  First, the timing of Ms. Donnells
    clarification in this court of her position regarding the Countys conduct
    obviously has implications for the costs of the appeal.

[28]

Second,
    Ms. Donnells abandonment of her claim that the County acted improperly in its
    by-law enforcement decisions regarding the Josephs, both here and in the court
    below, is tantamount to an implicit acknowledgement that a municipality has
    considerable discretion in determining by-law enforcement matters.  This
    principle is well-established.  While a municipalitys interpretation of the
    legal meaning of a municipal by-law attracts no deference from a reviewing
    court, its by-law enforcement decisions stand on a different footing.  Justice
    Laskin of this court put it this way in
Foley v. Shamess
, 2008 ONCA
    588, 297 D.L.R. (4th) 287, at para. 29:

For it is one thing to say a municipality has a duty to enforce
    its by-laws.  The way it enforces them is quite another thing.  As I read the
    case law, a municipality has a broad discretion in determining how it will
    enforce its by-laws, as long as it acts reasonably and in good faith.  That
    makes common sense.  The manner of enforcement ought not to be left to the
    whims or dictates of property owners.  [Citations omitted.]

See also
Runnymede Development Corp. v. 1201262
    Ontario Inc.
(2000), 47 O.R. (3d) 374 (Ont. S.C.);
Suprun v. Bryla
(2007), 41 M.P.L.R. (4th) 174 (Ont. S.C.), 2007 CanLII 56089, affd 2008 ONCA
    94 (C.A.).

[29]

Here,
    the application judge made no finding that the County acted in bad faith in its
    investigation of Ms. Donnells zoning-related complaints or in the process it
    followed to eventually decide, through its responsible building officials, that
    the Josephs impugned activities did not contravene the zoning by-law.  Nor did
    he make any finding that the Countys conduct in this regard was in any way
    unreasonable.  Absent findings of bad faith or unreasonable conduct by the County,
    it cannot be said that the Countys discretionary decision regarding the
    enforcement of the zoning by-law against the Josephs is vulnerable to reversal
    by a reviewing court.

[30]

I
    note that the record in this case does not support any claim that the County
    ignored or failed to investigate Ms. Donnells by-law complaints.  On the
    contrary, the evidence before the application judge established that upon
    receipt of Ms. Donnells complaints, the County conducted an investigation,
    provided recommendations to the Josephs as to how they could satisfy the
    requirements of the zoning and sign by-laws, and provided reasons for its
    decisions concerning their compliance with the by-laws.  As a result of this
    process, the Countys responsible building officials determined that the
    Josephs impugned activities did not offend the zoning by-law in any manner
    requiring enforcement.

[31]

This
    decision was within the scope of the Countys discretionary enforcement
    authority and should not be lightly interfered with.  The County enjoys real
    world, day-to-day expertise with the enforcement of its by-laws, in the
    context of the needs and interests of members of the entire municipality and
    the goals and purposes of the Countys land use planning policies.  In this
    case, no showing of bad faith or unreasonable conduct by the County has been
    made out so as to anchor judicial interference with the Countys enforcement
    decisions.

[32]

I
    would therefore dismiss Ms. Donnells appeal from the application judges
    decision on her zoning by-law complaints.

III.      Alleged Sign By-law Infractions

[33]

I
    turn now to Ms. Donnells claim that the Josephs are in breach of the Countys
    sign by-law.

[34]

Section
    6 of the sign by-law sets out certain restrictions on the dimensions, content
    and placement of signs identifying a home occupation permitted under the zoning
    by-law in agriculturally zoned areas.  For example, s. 6 of the sign by-law
    states, among other things, that a sign identifying a home occupation may
    indicate not more than the name, occupation and operating hours of the home
    occupation and may not exceed 3.0 sq. m. (32.30 sq. ft.) in sign area.

[35]

At
    the relevant times, the sign located on the Josephs property read Looking for
    Wayne? Call WJ Moving 519-426-8448.  Initially, the sign was approximately 8.8
    feet long.  It was subsequently reduced in size to about 7.8 feet in length, in
    excess of the 3.0 square metres permitted by the sign by-law.

[36]

Ms.
    Donnell advances two complaints concerning the Josephs sign.  First, she
    submits that it exceeds the enumerated physical size limits of the sign
    by-law.  Second, she contends that, contrary to the sign by-law, the Josephs
    sign includes the telephone number for their moving business and words
    directing passersby to that business.

[37]

The
    application judge, for reasons that I will describe, declined to give effect to
    these complaints.  I see no basis on which to interfere with his decision.

[38]

Section
    17 of the sign by-law permits minor exceptions to the requirements of the
    by-law on approval by the Countys By-law Appeals Committee.  The Josephs
    modified the dimensions of their sign at the Countys request to reduce its
    overall size.  Then, when the County expressed continuing concern after this
    initial modification, the Josephs obtained approval from the Countys By-law
    Appeals Committee for a minor exception to the sign by-law, approving the
    dimensions of their sign.

[39]

Thus,
    on at least two occasions, the County took steps to require the Josephs to
    adapt the size of their sign in order to adhere to the requirements of the sign
    by-law.  When the Josephs sign continued to be off-side the size dimensions
    permitted under the sign by-law, the Josephs availed themselves of the by-law
    exception procedure contemplated under the sign by-law.  They were entitled to
    do so.

[40]

As
    a result, by the time of the hearing before the application judge, the
    dimensions of the Josephs sign conformed to the sign by-law based on the
    exception granted by the Countys By-law Appeals Committee.  There was,
    therefore, no size infraction of the sign by-law.

[41]

This
    leaves the issue of the content of the Josephs sign.  Two considerations are
    relevant.  First, by the time of the hearing before the application judge, the
    Josephs had again applied to the Countys By-law Appeals Committee for approval
    of a further minor exception to the sign by-law, to permit the content of their
    sign attacked by Ms. Donnell.  During oral argument, we were informed by
    counsel that the requested exception was granted.  Accordingly, for all
    practical purposes, the issue whether the content of the Josephs sign contravenes
    the sign by-law is now moot.

[42]

Moreover,
    before this exception was granted by the Countys By-law Appeals Committee,
    County officials who had been involved in drafting the sign by-law considered
    the impugned content of the Josephs sign and concluded that it conformed to the
    intent of the sign by-law for the advertisement of a home occupation permitted
    under the zoning by-law.

[43]

While
    the evidence of these officials conclusion on compliance with the sign by-law is
    not determinative of whether the Josephs in fact complied with the sign by-law,
    it is some evidence of the municipalitys perspective on the nature and
    seriousness of the alleged infraction of the sign by-law, if any, and of the
    overall context of the Countys land use regulatory regime: see
Runnymede
at para. 44.

[44]

On
    these facts, the application judge concluded that the sign in question, with
    the minor variances that [Mr. Joseph] obtained and the one that he seeks [if
    granted] does not violate the sign by-law.  I agree.  I also again note that,
    as it happens, the second sign by-law exception requested by the Josephs has
    apparently been granted.

IV.     Complaints Regarding the Countys Conduct

[45]

As
    I have already indicated, Ms. Donnell did not pursue the question of the
    propriety of the Countys conduct during oral argument before this court.  In
    particular, her counsel did not press the suggestion that the Countys conduct
    somehow disentitled it to its costs of the proceeding before the application
    judge, a matter that was not appealed by Ms. Donnell.  Consequently, the attack
    on the Countys conduct in the investigation of Ms. Donnells complaints and
    the process it followed regarding enforcement of the zoning and sign by-laws
    against the Josephs need not be considered further.

V.       Conclusion

[46]

I
    cannot leave this appeal without one final comment.  Ms. Donnells by-law
    complaints are based on a strict, and narrow, construction of the by-laws at
    issue.  While Ms. Donnell was entitled to pursue her complaints, I agree with
    the application judge that an unduly restrictive interpretation of the by-laws
    in question, as urged by Ms. Donnell, could have a chilling effect on the
    operation of small businesses from homes in the County located on
    agriculturally-zoned lands, where the employees of the relevant businesses
    perform their work elsewhere.  For example, as the Josephs counsel emphasized,
    if Ms. Donnells interpretive approach to the Countys by-laws were to be
    accepted, small contractors or persons operating on-line businesses from home,
    with employees who perform their work elsewhere, could not operate their
    businesses from homes in the County located on agriculturally-zoned lands.  As
    well, the owners of such businesses would be precluded from parking vehicles
    used in connection with their home occupations on their properties.

[47]

Furthermore,
    on Ms. Donnells interpretation of the zoning and sign by-laws, little room, if
    any, would be left for discretionary by-law enforcement decisions by municipal
    by-law officials.

[48]

I
    reject the notion that either result was intended by the County in passing its
    zoning and sign by-laws or, more importantly, that either result would advance
    the public interest goals of the Countys by-law regulation regime.

[49]

Accordingly,
    for the reasons given, I would dismiss the appeal.  In the circumstances, I
    would award the respondents their costs of the appeal in the amounts of $10,000
    for the Josephs and $10,000 for the County, each inclusive of disbursements and
    all applicable taxes.

Released: Apr 17 2012                     E.A. Cronk
    J.A.

EAC                                                I
    agree G.J. Epstein J.A.

I
    agree G. R. Strathy J.A. (
ad hoc
)


