Non-conforming Uses, Zoning And The Court Of Appeal

June 9, 2006

By Brian Babcock

In a previous article, I discussed the recent Superior Court ruling in Watts v Benvenutti. In that decision, a judge ruled that a landowner could operate a horse farm in an area now zoned residential, finding it to be a legally non-conforming use. The judge rejected an argument advanced by the complaining neighbour that the prior use, when the property was zoned agricultural, had been mainly cash crop farming, and that raising horses was a different use, and thus contravened the new by-law.

Since this case was based on unchallenged evidence, there was no delay in waiting for trial transcripts of evidence, and the Ontario Court of Appeal has already ruled on the case, upholding the Superior Court decision.

In doing so, the appeal court distinguishes between “activities” and “uses”. Activities may change, but a use is a category. The nature of the farming changed, but it was classified as being within the same use, agriculture.

Equally significant, however, the court gave weight to the trial judge’s finding that the alteration in the activities had little community impact. This criterion for determining whether two activities are within the same range of “uses” was adopted by the trial judge from a Supreme Court of Canada case. Although the Supreme Court is Canada’s ultimate appeal court, and its decisions are binding on lower courts, the neighbour argued that, because the Supreme Court was interpreting Quebec zoning law in its decision, that those criteria did not apply in Ontario, because the legislation is different.

The Court of Appeal referred back to the Supreme Court decision, which set out the criteria as being principles of general application in Canada, drawing on prior cases from various provinces.

By affirming that these principles are the law in Ontario, the Court of Appeal has confirmed that in determining whether a shift in activities represents a change from a legally non-conforming use, a judge must consider:

  1. The purpose of the pre-existing use and the pre-existing activities.
  2. Is the new use an intensification of the old use, in degree or kind, or does it have a different community impact?
  3. Is the new activity closely related to the old use?
  4. Are the new activities within the scope of the old use?
  5. The effect on the neighbourhood.
  6. The proper balance between flexibility and constraint.

As discussed earlier, this represents a triumph for a practical or functional (common sense) approach over a technical, legalistic interpretation. As with any shift in how by-laws are interpreted, this may mean that timely legal advice is important. At Weilers, we have decades of experience in advising clients on their rights in planning and zoning disputes. Often a modest investment in advice can avoid a costly dispute. Of course, if a dispute cannot be avoided, we also represent landowners and municipalities in court or before tribunals.