



COURT OF APPEAL FOR ONTARIO

CITATION: Havelock-Belmont-Methuen (Township) v. Kloosterman,

2018 ONCA 945

DATE: 20181126

DOCKET: C65367

Strathy C.J.O., Benotto and Roberts JJ.A.

BETWEEN

The Corporation of the Township of
    Havelock-Belmont-Methuen

Applicant
(Respondent on Appeal)

and

Albert Kloosterman and Mary Lynne Kloosterman

Respondents
(Appellants on Appeal)

Christopher Robertson, for
    the Appellants

M. John Ewart and Jessica Chapman, for the Respondent

Heard: November 19, 2018

On appeal from the
    order of Justice Alexander Sosna of the Superior Court of Justice, dated April
    12, 2016.

REASONS FOR DECISION

[1]

The appellants are owners of a piece of vacant land in the Township of Havelock-Belmont-Methuen.
    They appeal from the application judges order granting the Township a
    declaration that the placement on the appellants property of a trailer/recreational
    vehicle or any vehicle for the purposes of human habitation is a non-permitted
    use, and an injunction prohibiting the appellants from placing a trailer/recreational
    vehicle or any vehicle upon their property.

[2]

The order arises out of the Townships application under its
    Comprehensive Zoning By-Law No. 1995-42 (the By-Law) and its allegation that
    the appellants infringed s. 4.31 of the By-Law by placing a prohibited vehicle
    for temporary or permanent human habitation on their property.

[3]

Section 4.31 of the By-Law reads as follows:

S. 4.31

Prohibited Habitation and Storage of Goods,
    Materials, Animals or Equipment

No truck, bus, coach, cargo or freight container, recreational
    or any other type of trailer shall be used for either temporary or permanent
    human habitation, the keeping of animals, storage of goods, materials, ore,
    equipment, whether or not the same is mounted on wheels.

Human habitation, whether temporary or permanent, shall only be
    permitted in a dwelling unit located within a zone permitting residential uses;
    erected and used in accordance with this and all other by-laws of the
    Corporation.

[4]

The following definitions under s. 2 of the By-Law are relevant:

RECREATIONAL MOTOR HOME means a self-propelled vehicle
    designed for temporary or seasonal living, sleeping or eating accommodation,
    including a truck camper, but does not include a mobile home or recreational
    travel trailer as defined herein.

RECREATIONAL VEHICLE means any small vehicle used primarily
    for recreation, powered, propelled or driven otherwise than by muscular power. 
    This definition shall include all-terrain vehicles, snowmobiles, hovercraft,
    amphibious vehicles and vehicles of a similar nature.

TRAILER means any vehicle designed to be towed by a motor
    vehicle.

TRAVEL TRAILER means a vehicular portable structure with the
    running gear intact that is not more than 2.6 metres (8.5 feet) wide and 12.5
    metres (41 feet) long and is designed for short-term occupancy to be used for
    travel, recreation and vacation.  This definition shall not include a mobile
    home or motor home.

[5]

The application judge interpreted s. 4.31 of the By-Law to include the
    vehicle depicted in the photographs taken by the Townships by-law inspector
    and produced in support of the Townships application. It is acknowledged that
    the vehicle falls within the By-Laws definition of a recreational motor
    home.  The application judge found that the connection of the appellants
    vehicle to the power line on the property was evidence of intended habitation
    despite finding no evidence of actual habitation. He granted the Townships
    application.

[6]

The appellants submit that the application judge erred in his
    interpretation of the By-Law, in his finding that the connection of the appellants
    motor home to the propertys power line was evidence of intended habitation, and
    in his overly broad order that prohibited the placement of any vehicle on the
    appellants property.

[7]

We agree.

[8]

First, it is clear from a plain reading of the By-Law, including its
    definitions, that recreational vehicles and motor homes are not included in s.
    4.31. Section 4.31 expressly prohibits the placement of any truck, bus, coach,
    cargo or freight container, recreational or any other type of trailer but not a
    motor home. The definitions under s. 2 cited above for recreational vehicle,
    trailer and travel trailer do not include recreational motor homes. Moreover,
    the Townships by-law inspector admitted on his cross-examination that the
    vehicle depicted in the photographs in support of the application was not a
trailer
but a
motor home
.

[9]

It was therefore not open to the application judge to conclude that
    [t]he overall appearance, structure [of the vehicle depicted in the
    photographs] is consistent with a vehicle built and intended for recreational
    use and therefore captured as being prohibited by the By-Law, when the
    unambiguous definitions of the By-Law and the unchallenged evidence of the Townships
    by-law inspector excluded the appellants vehicle.

[10]

Second,
    having accepted that human habitation goes beyond sleeping, eating, and
    executory functions, the application judge erred in determining that providing
    electrical power to the appellants motor home was consistent with intended
    habitation despite no evidence of actual habitation. There was no evidence of
    actual use beyond the appellants evidence that seasonally Mr. Kloosterman and
    his grandchildren might occasionally use the motor home for privacy in changing
    bathing suits or for its washroom facilities. These kinds of uses fall far
    short of human habitation.

[11]

Finally,
    the application judges order is overly broad. It goes beyond the scope of the
    By-Law and enjoins the placement on the appellants property of all vehicles,
    even cars, which are clearly not prohibited under the By-Law.

[12]

Accordingly,
    the appeal is allowed and the order is set aside.

[13]

As
    agreed, the appellants are entitled to their partial indemnity costs in the
    amount of $5,000 plus HST for the appeal and $8,000 plus HST for the
    application; both amounts include disbursements.

G.R. Strathy
    C.J.O.

M.L. Benotto
    J.A.

L.B. Roberts
    J.A.


