



COURT OF APPEAL FOR ONTARIO

CITATION: Whitchurch-Stouffville (Town) v.
    Bolender, 2020 ONCA 172

DATE: 20200306

DOCKET: C65414

Feldman, Huscroft and Harvison Young
    JJ.A.

BETWEEN

The Corporation of the Town of Whitchurch-Stouffville

Applicant (Respondent)

and

Paul Bolender, John Bolender,
    Bruce Bolender and Karen McConnell

Respondents (Appellants)

Al Burton, for the appellants

John Hart, for the respondent

Heard: March 2, 2020

On appeal from the judgment of Justice Anne
    Mullins of the Superior Court of Justice, dated April 24, 2018, with reasons
    reported 2018 ONSC 2621, 74 M.P.L.R. (5th) 263.

REASONS FOR DECISION

[1]

The appellants own two properties in the
    respondent municipality, one since the late 1960s and the other since the late
    1970s. They have carried on the business of harvesting peat moss and making
    triple mix on the properties, which are zoned for rural use. They have also, in
    the past, altered the sites without obtaining a permit as required by a site
    alteration by-law by having trucks come onto the property to dump fill and
    other materials.

[2]

The town obtained an interim and then a
    permanent injunction to stop these activities in 2013 and 2014, but the injunction
    was set aside by this court in July 2015 on the basis that a trial of the
    issues was required and such a trial was ordered.

[3]

After a 12-day trial, the trial judge rendered
    the following judgment:

1.

THIS COURT ORDERS
that the open storage of heavy equipment at 14547 Highway 48
    Whitchurch-Stouffville, Ontario constitutes a lawful non-conforming use at that
    address.

2.

THIS COURT ORDERS
that the Respondents, Paul Bolender, Karen McConnell, Bruce Bolender and John
    Bolender are hereby prohibited from extracting peat, assembling triple mix and
    receiving waste, and any activities incidental thereto, at 14857 Highway 48
    Whitchurch-Stouffville and 14547 Highway 48 Whitchurch-Stouffville.

3.

THIS COURT ORDERS
that the receipt and accumulation of waste or fill, the extraction of peat and
    the compilation of triple mix, and the incidental uses thereto, are not and
    have never been permitted uses under the various Zoning By-laws of the Town of
    Whitchurch-Stouffville at 14857 Highway 48 Whitchurch-Stouffville and 14547
    Highway 48 Whitchurch-Stouffville.

4.

THIS COURT DECLARES
that the Respondents Paul Bolender, Karen McConnell and Bruce
    Bolender have breached the provisions of the Site Alteration By-law of the Town
    of Whitchurch-Stouffville, being By-law 2017-017-RE.

5.

THIS COURT ORDERS
that Paul Bolender, Karen McConnell and Bruce Bolender be and the same are
    hereby restrained from contravening Section 2.2 of the Site Alteration By-law
    of the Town of Whitchurch-Stouffville, being By-law 2017-017-RE, which provides
    that no person shall undertake, cause, or permit any site alteration of any
Property
within the Town without the owner first receiving a permit issued under the
    said By-law by the Director, as defined therein, authorizing the Site
    Alteration.

6.

THIS COURT ORDERS
that costs may be spoken to by the parties.

[4]

Dealing first with paras. 4 and 5 of the order, which
    are relevant only to the North property, the appellants submit that there was
    no evidence of any activity being carried out on the property in 2017 and therefore
    no order could be made in respect of enforcing the 2017 by-law. The appellants
    also submit that by using evidence from 2012 and 2013 to substantiate an
    injunction that enforces a 2017 by-law, the trial judge gave the by-law
    retroactive effect, contrary to this courts decision in
Burlington (City)
    v. Burlington Airpark Inc.
, 2017 ONCA 420, 138 O.R. (3d) 309.

[5]

The respondent conceded in oral argument that para.
    4 of the order, which finds a breach of the 2017 by-law, cannot stand as no
    evidence of any such breach was led. We agree.

[6]

We do not agree, however, that any error was
    made in the order in para. 5. While the appellants discontinued their
    activities on the properties in response to the injunction and did not
    recommence pending the trial and disposition by the court, they did not give
    evidence at the trial that they did not intend to carry on their business on
    the North Property in the future.

We are satisfied that in those
    circumstances, the evidence of what occurred before the interim injunction was
    ordered in 2013 was the only relevant evidence that could be led on the trial
    that was ordered by this court.

[7]

Nor is there any improper retroactive effect by
    that approach. This is not a case like
Burlington
, in which the town
    wanted the property-owner to seek a permit based on a repealed by-law. In this
    case, the effect of para. 5 is to require the appellants to comply with the
    2017 by-law in the future by obtaining a permit before doing any site
    alteration, in the face of evidence that they failed to obtain the required
    permits, contrary to previous by-laws, in the past.

[8]

The appellants further argued that the trial
    judge erred in making the orders in paras. 1-3 by failing to find that the peat
    moss extraction, triple mix compilation, and related activities constituted
    legal non-conforming uses of the properties. They submit that the trial judge
    failed to apply the factors set out by the Supreme Court in
Saint-Romuald
    (City) v. Olivier
, 2001 SCC 57, [2001] 2 S.C.R. 898, at para. 39, for
    determining which non-conforming uses of property will nevertheless be legal.
    They argue that the placement of heavy equipment on the North Property in 1968,
    which the trial judge found was a legal non-conforming use, expanded into the
    other activities on both properties in a way which extended that legal
    protection to all the appellants uses of the lands.

[9]

We do not agree. The trial judge gave reasons
    for finding that the activities carried out by the appellants constituted
    industrial rather than rural or agricultural uses, that these activities were
    prohibited from their commencement by the by-laws, and that they were not an
    extension of the storage of heavy equipment, within the meaning of the
Saint-Romuald
factors.

Disposition

[10]

Given our conclusions above, it is unnecessary
    to address the appellants arguments regarding the quantification of damages had
    they succeeded on the merits. We also see no basis to interfere with the costs
    order below.

[11]

The appeal is therefore dismissed, subject to
    setting aside para. 4 of the order on consent. We order costs of the appeal to
    the respondent in the agreed amount of $22,500, inclusive of disbursements and
    HST.

K. Feldman J.A.

Grant Huscroft J.A.

Harvison Young J.A.


