Ottawa (City) v. TDL Group Corp., (2009) 256 O.A.C. 142 (DC)

• Judge: Roccamo, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: November 09, 2009
• Jurisdiction: Ontario
• Citations: (2009), 256 O.A.C. 142 (DC)

Ottawa v. TDL Group Corp. (2009), 256 O.A.C. 142 (DC)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. DE.033

City of Ottawa (moving party) v. The TDL Group Corporation (responding party)

(09-DV-1542)

Indexed As: Ottawa (City) v. TDL Group Corp.

Court of Ontario

Superior Court of Justice

Divisional Court

Roccamo, J.

November 9, 2009.

Summary:

The City of Ottawa passed a zoning bylaw under the authority of s. 34(1) of the Planning Act. Section 34(9)(a) of the Act provided that the City had no authority to enact a bylaw to terminate a nonconforming use as long as it continued to be used for that purpose. Section 3 of the bylaw provided that if a building was "voluntarily" repaired or rebuilt the non-conforming use was terminated. Property owners, including TDL, appealed to the Ontario Municipal Board, challenging the validity of s. 3 of the bylaw. At the hearing, the City confirmed that the intention of s. 3 was to gradually phase out existing legal non-conforming uses. If a property owner renovated, repaired or upgraded his property without altering his legal non-conforming use, his non-conforming use would be terminated. Only "involuntary" repairs were permitted (e.g. repairing damage caused by a fire or flood). The Board allowed the appeal. The City had no authority to terminate a legal non-conforming use where a property owner voluntarily repaired, renovated or upgraded his property without changing the non-conforming use. The City applied for leave to appeal.

The Ontario Divisional Court, per Roccamo, J., applying a reasonableness standard of review, denied leave to appeal. The Board's decision, that s. 3 of the bylaw interfered with acquired rights contrary to s. 34(9)(a), was not only reasonable, but was correct.

Land Regulation - Topic 2605

Land use control - Zoning bylaws - Enactment and interpretation - Jurisdiction to enact - The City of Ottawa passed a zoning bylaw under the authority of s. 34(1) of the Planning Act - Section 34(9)(a) of the Act provided that the City had no authority to enact a bylaw to terminate a nonconforming use as long as it continued to be used for that purpose - Section 3 of the bylaw provided that if a building was "voluntarily" repaired or rebuilt the non-conforming use was terminated - Property owners, including TDL, appealed to the Ontario Municipal Board, challenging the validity of s. 3 of the bylaw - At the hearing, the City confirmed that the intention of s. 3 was to gradually phase out existing legal non-conforming uses - If a property owner renovated, repaired or upgraded his property without altering his legal non-conforming use, his non-conforming use would be terminated - Only "involuntary" repairs were permitted (e.g. repairing damage caused by a fire or flood) - The Board allowed the appeal - The City had no authority to terminate a legal non-conforming use where a property owner voluntarily repaired, renovated or upgraded his property without changing the non-conforming use - The City applied for leave to appeal - The Ontario Divisional Court, per Roccamo, J., applying a reasonableness standard of review, denied leave to appeal - The Board's decision, that s. 3 of the bylaw interfered with acquired rights contrary to s. 34(9)(a), was not only reasonable, but was correct - See paragraphs 1 to 39.

Land Regulation - Topic 2810

Land use control - Exemptions - Nonconforming use - Termination by voluntary repairs, renovations, etc. - [See Land Regulation - Topic 2605 ].

Land Regulation - Topic 4143

Land use control - Appeals to the courts - Scope of appeal - [See Land Regulation - Topic 2605 ].

Cases Noticed:

Gaudaur et al. v. Etobicoke (City) et al. (1997), 103 O.A.C. 271; 35 O.R.(3d) 551 (Div. Ct.), refd to. [para. 16].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1, refd to. [para. 17].

London (City) v. Ayerswood Development Corp. et al. (2002), 167 O.A.C. 120 (C.A.), refd to. [para. 20].

Toronto (City) v. Romlek Enterprises et al. (2009), 250 O.A.C. 368 (Div. Ct.), refd to. [para. 20].

Toronto (City) v. R & G Realty Management Inc., [2009] O.A.C. Uned. 195; 62 O.M.B.R. 58 (Div. Ct.), refd to. [para. 22].

884709 Ontario Ltd. v Ottawa (City), 1992 CarswellOnt 516 (Gen. Div.), refd to. [para. 30].

Fagundes v. Haldimand-Norfolk (Regional Municipality) (2000), 134 O.A.C. 74; 2000 CarswellOnt 2041 (C.A.), refd to. [para. 31].

Gallos v. Toronto (City), 2008 CarswellOnt 6758 (Sup. Ct.), refd to. [para. 31].

Heutinck v. Oakland (Township) (1997), 105 O.A.C. 364; 1997 CarswellOnt 4653 (C.A.), refd to. [para. 32].

Central Jewish Institute v. Toronto (City), [1948] S.C.R. 101, refd to. [para. 33].

Saint-Romuald (Ville) v. Olivier et al., [2001] 2 S.C.R. 898; 275 N.R. 1, refd to. [para. 33].

Ottawa (City) v. Capital Parking Inc. (2002), 158 O.A.C. 174; 59 O.R.(3d) 327 (C.A.), refd to. [para. 35].

Rotstein v. Oro-Medonte (Township) et al., [2002] O.T.C. 1011; 34 M.P.L.R.(3d) 266 (Sup. Ct.), refd to. [para. 37].

Mohammed v. Dysart (Municipality) et al. (2003), 45 M.P.L.R.(3d) 282 (Ont. Sup. Ct.), refd to. [para. 37].

Country Pork Ltd. v. Ashfield (Township) et al. (2002), 162 O.A.C. 223; 2002 CarswellOnt 2492 (C.A.), refd to. [para. 38].

Pedwell et al. v. Pelham (Town) et al. (2003), 174 O.A.C. 147; 2003 CarswellOnt 1701 (C.A.), refd to. [para. 38].

Statutes Noticed:

Planning Act, R.S.O. 1990, c. P-13, sect. 34(9)(a) [para. 4].

Counsel:

Timothy C. Marc, for the moving party;

Michael S. Polowin, for the responding party.

This application for leave to appeal was heard October 13 and 16, 2009, before Roccamo, J., of the Ontario Divisional Court, who released the following judgment on November 9, 2009.