



COURT OF APPEAL FOR ONTARIO

CITATION: York (Regional Municipality) v.
    1085638 Ontario Limited, 2022 ONCA 263

DATE: 20220331

DOCKET: C66417

Simmons, Miller and Nordheimer
    JJ.A.

BETWEEN

Regional Municipality of York

Respondent

and

1085638
    Ontario Limited and Meadow Valley Garden Centre Ltd.

Appellants

Adam Marchioni, for the appellants

Chris G. Bendick, for the respondent

Heard: March 21, 2022 by video
    conference

On appeal from the judgment of Justice
    David S. Rose of the Ontario Court of Justice, dated September 28, 2018, dismissing
    an appeal from the convictions entered on June 6, 2017 by Justice of the Peace Herbert
    B. Radtke of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant, 1085638 Ontario Limited, was
    convicted of one offence under the
Building Code Act, 1992
, S.O. 1992,
    c. 23 and both appellants were convicted of two offences under the
Planning
    Act
, R.S.O. 1990, c. P.13. All of the offences relate to the operation of
    a garden centre in the City of Vaughan. The appellants now appeal, with leave,
    from those convictions.

A.

Background

[2]

There is a lengthy history to this matter which
    we need not repeat for the purposes of our analysis and conclusion. The
    relevant facts may be stated briefly.

[3]

The appellants operated a garden centre on Keele
    Street in the City of Vaughan. There is no dispute about this fact. There is,
    however, a dispute about the length of time that the garden centre operated,
    about which we will have more to say later.

[4]

The first offence relates to the construction of
    a building that houses the garden centre. It was constructed without obtaining
    a building permit. On March 10, 2005, a building inspector for the City of
    Vaughan issued an order to comply that required that an engineers report be
    filed with the City. That was never done. This led to the charge under the
Building
    Code Act
.

[5]

Many years later, in April 2012, a by-law
    officer for the City of Vaughan attended at the garden centre. She observed vehicles
    and equipment along with gardening materials and supplies. Trees and shrubs
    were for sale. The location of the garden centre is on lands that are part of
    the Oak Ridges Moraine. Zoning for the lands did not permit the operation of a
    retail nursery nor did it permit open storage. This led to the two offences
    under the
Planning Act
.

[6]

We should add that, back in 1992, 1085638
    Ontario Limited had submitted an application to amend the official plan and
    zoning to permit the operation of a garden centre. That application was granted
    subject to certain conditions. Those conditions were never fulfilled. Consequently,
    the amendment never came into effect.

B.

The decisions below

[7]

The Justice of the Peace convicted the
    appellants at first instance. He found that the appellants had shown a lack of
    respect for the process and had flouted the law. With respect to the appellants
    argument that the garden centre constituted a legal non-conforming use, the
    Justice of the Peace found that there was insufficient evidence that the garden
    centre was in fact operating on the day of the passing of the bylaw. Thus,
    there was no evidentiary foundation for the argument of legal non-conforming
    use.

[8]

The appeal judge reviewed the reasons and
    conclusions of the Justice of the Peace and, in detailed reasons, he upheld
    them.

[9]

It is not necessary for us to consider all of
    the issues that the Justice of the Peace dealt with because this court, in
    granting leave to appeal, restricted the issues on the appeal to two: (i) the
    issue of legal non-conforming use under s. 34(9) of the
Planning Act
and (ii) the issue of delay under s. 11(b) of the
Canadian Charter of
    Rights and Freedoms
.

[10]

On the first issue, the Justice of the Peace
    found, as we have said, that there was insufficient evidence led by the
    appellants to establish that the garden centre was in operation at the time
    that the municipal by-law came into force. The by-law prohibited the use of the
    lands for the retail operation of a garden centre. The appeal judge upheld that
    conclusion, finding that it was a question of fact which was entitled to
    deference. However, the appeal judge went on to find a second reason for sustaining
    that conclusion. He found that the building for the garden centre had been
    erected in 1992, long after the by-law was passed. He found that that fact also
    meant that the appellants could not rely on a legal non-conforming use.

[11]

The second issue raised the question of delay in
    the prosecution, and an asserted breach of s. 11(b) of the
Charter
.
    The issue was raised back in 2011 and with reasons delivered in January 2012,
    prior to the second and third charges being laid. The application for a stay
    was dismissed. As if this matter was not confused enough, we should point out
    that the s. 11(b) issue was heard and determined by another Justice of the
    Peace, not the one who convicted the appellants.

[12]

There is no issue raised regarding any delay in
    the prosecution after that ruling. It is also agreed that the only challenge to
    the s. 11(b) ruling is whether the Justice of the Peace, who heard and
    determined that challenge, was correct in holding that 1085638 Ontario Limited
    had failed to demonstrate that it had suffered any prejudice arising from the
    delay.

[13]

The appeal judge found that the correct test had
    been applied in considering the s. 11(b) issue. He also found that the Justice
    of the Peace had not committed any error in concluding, on the evidence, that
    no prejudice had been established.

C.

Analysis

[14]

In our view, the appeal judge was correct in
    both of his conclusions.

(1)

Legal
    non-conforming use

[15]

The argument on this issue, and which led to
    leave to appeal being granted, was whether s. 34(9) of the
Planning Act
requires that the non-conforming use be in active operation on the very day
    that the zoning by-law comes into force. That question is of importance in this
    case because, as found by the Justice of the Peace, the appellants could not
    state with any certainty that that was the case. Indeed, there was some
    evidence that could suggest the garden centre had not become operational until
    much later in time.

[16]

The appellants submit that to hold that the
    business must be in operation on the very day when the zoning by-law comes into
    force is inconsistent with the wording of the
Planning Act
and is also
    inconsistent with this courts decision in
Feather v. Bradford (Town),
2010 ONCA 440, 320 D.L.R. (4th) 228.

[17]

We do not agree. In our view, the wording of s.
    34(9) is clear. It reads:

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. [Emphasis added.]

[18]

The emphasized words from s. 34(9)(a) do not
    allow for any other interpretation. Had the Legislature intended that the use
    could exist at some point prior to the by-law being passed, it could have used
    the language that appears in s. 34(9)(b), that is prior to the day of the
    passing of the by-law, but it did not. The express language of the section
    must be given effect.

[19]

We also do not see any inconsistency in that
    conclusion and the decision in
Feather
for two reasons. The first is
    that the decision in
Feather
did not deal with the issue that is
    before us. Rather, the decision addresses an attempt by the property owner to
    reconstruct a cottage. It did not involve an issue over the use of an existing cottage.
    The second is that there was a factual finding in
Feather
that the
    owner of the cottage had used it continually up to and including the date on
    which the applicable zoning by-law was passed. That is an important factual
    distinction between this case and
Feather
.

[20]

The appellants advance a further basis for submitting
    that the finding of the Justice of the Peace was in error. They contend that
    the finding that there was insufficient evidence that the business was
    operating on the day the by-law was passed was premised on the fact that the
    witnesses who testified to the issue could not recall whether the garden centre
    was open on the specific day the by-law was passed. They say there was
    unchallenged evidence that the appellants began operations prior to the date on
    which the by-law was passed and continued thereafter to the date of the
    hearing. The finding of insufficient evidence that the business was operating
    on the date the by-law was passed is therefore an error in law.

[21]

We cannot accept this argument. The appellants
    evidence that the garden centre began operations prior to the date on which the
    by-law was passed was not unchallenged. As we have said, there was also
    evidence on which the Regional Municipality of York (the Region) relied that
    could suggest the garden centre was not operational until well after the by-law
    was passed. Counsel for the Region cross-examined the appellants witnesses
    concerning whether the business was in operation on the day the by-law was
    passed. The appellants argument in this regard is not a question of law,
    rather it is a question that attracts review on a standard of palpable and
    overriding error. This courts jurisdiction on appeal under s. 131 of the
Provincial
    Offences Act
, R.S.O. 1990 c. P.33 is limited to a question of law alone.
    The appellants argument in this regard was addressed and dismissed by the
    appeal judge.

(2)

The s. 11(b) argument

[22]

The respondent concedes that the appeal judge
    erred, when considering this issue, in not applying the test in
R. v.
    Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631, and more specifically, the
    application of the transitional exceptional circumstance. In our view, that
    error is of no moment in this case. The decision in
Jordan
provides
    for a transitional exceptional circumstance to excuse delay in cases that were
    still in the system when the decision in
Jordan
was released, but
    where the delay in the case is explained by reliance on the pre-existing law. At
    para. 96, the court said: This transitional exceptional circumstance will
    apply when the Crown satisfies the court that the time the case has taken is
    justified based on the parties' reasonable reliance on the law as it previously
    existed.

[23]

All of the delay in this matter preceded the
    decision in
Jordan
by more than four years. In determining the s.
    11(b) issue, the Justice of the Peace properly applied the law that existed at
    the time, that is, the decision in
R. v. Morin
, [1992] 1 S.C.R. 771
    and related cases. On that point, the decision in
R. v. CIP Inc.
,
    [1992] 1 S.C.R. 843, made it clear that in order for a corporation to obtain a
    stay of proceedings under s. 11(b), it was required to show prejudice to its
    ability to make full answer and defence. The court said, at p. 863:

It is therefore my opinion that with respect
    to this fourth factor, a corporate accused must be able to establish that its
    fair trial interest has been irremediably prejudiced.

[24]

The appellant, 1085638 Ontario Limited, did not
    lead any evidence of any prejudice to its right to make full answer and
    defence. The s. 11(b) challenge was, therefore, properly dismissed. It is not
    necessary for us to consider the issue whether, in cases that involve a
    corporation and where the delay includes delay post-
Jordan
, there is
    still a need to demonstrate prejudice.

D.

COnclusion

[25]

The appeal is
    dismissed.

Janet Simmons J.A.

B.W. Miller J.A.

I.V.B. Nordheimer J.A.


