



COURT OF APPEAL FOR ONTARIO

CITATION: Allied Properties Reit v. 1064249 Ontario Inc.,
    2017 ONCA 419

DATE: 20170523

DOCKET: C62996

LaForme, van Rensburg and Huscroft JJ.A.

BETWEEN

Allied Properties Reit, 460 King Street West Inc.
    and 1301585 Ontario Inc.

Applicants (Respondents)

and

1064249 Ontario Inc.

Respondents (Appellants)

Patrick DiMonte for the appellants

David S. Reiter and Meghan A. Cowan for the respondents

Heard: May 19, 2017

On appeal from the judgment of Justice Kristjanson of the
    Superior Court of Justice, dated January 3, 2017.

REASONS FOR DECISION

[1]

The appellant conceded that its commercial parking lot
    was not in compliance with the Zoning By-Law. In order to defeat the respondent's
    request for an injunction restraining operation of its parking lot, the
    appellant had to establish that its property was a legal non-conforming use. To
    do this, it had to demonstrate that a commercial parking lot had operated
    continuously and without interruption on the property since passage of the
    Zoning By-Law in 1993. It failed to do so, and the application judge granted
    the declaratory relief and an injunction requested by the respondent.

[2]

The burden on this appeal is for the appellant to establish
    that the application judge made a palpable and overriding error.
We
    see no error, much less a palpable and overriding error.

[3]


In short, the appellant failed because there was
    no evidence to support its position that the use of the
    property had not changed since the passage of the By-Law. The
    application judge found that the lot was used as an accessory lot rather
    than as a stand-alone commercial parking lot from 1993 through 1996. She
    accepted the evidence of
Mr. Stagl, a Registered Professional Planner,
that the lot fell out of compliance when its use changed. Mr.
    Stagl's evidence concerning the difference between use as an
    accessory lot and use as a commercial parking lot under the By-Law
    was accepted by the application judge and was not challenged on
    cross-examination by the appellant. Indeed, there was no other evidence on
    this critical issue before the application judge.

[4]

On appeal, the appellant essentially asks this court to
    make different findings than the application judge. That is not our role. The
    application judge made findings that were open to her based on the record,
    and there is no basis for this court to interfere with them.

[5]

The appeal is dismissed. The respondent is entitled to
    costs of $15,000, inclusive of taxes and disbursements.

H.S.
    LaForme J.A.

K. van Rensburg
    J.A.

Grant Huscroft
    J.A.


