R. v. Provincial Property Services Inc.

R. v. Provincial Property Services Inc. Court Supreme Court Date 2021-02-19 Citation 2021 NSSC 62 Docket Halifax, No. 493936 Judge/Registrar/Adjudicator Arnold, Joshua M. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: R. v. Provincial Property Services Inc., 2021 NSSC 62 Date: 20210219 Docket: Halifax, No. 493936 Registry: Halifax Between: Provincial Property Services Incorporated Applicant v. Her Majesty the Queen in Right of the Province of Nova Scotia Respondent Decision on Summary Conviction Appeal Judge: The Honourable Justice Joshua Arnold Heard: September 1, 2020, in Halifax, Nova Scotia Counsel: Andrew Christofi, for the Applicant Joshua Judah, for the Respondent By the Court: Introduction [1] This is a summary conviction appeal. [2] Provincial Property Services was convicted under section 369 of the Halifax Regional Municipality Charter, S.N.S. 2008, c. 39, and Part 5, section 3(a) of the Bedford Land Use By-Law, of allowing occupancy of a 40-foot wide buffer zone at the rear of its property without obtaining a development permit. Background [3] Provincial Property Services Incorporated (“PPS”), the appellant, is a real estate holding company incorporated under the Nova Scotia Companies Act, R.S.N.S 1989, c. 81. It owns property at 217 Bluewater Road in Bedford. Another company, Provincial Pavement Markings Incorporated, which does commercial and industrial construction and renovation, is the tenant on the property. The property is zoned “light industrial.” It abuts property zoned “residential.” [4] The property was previously owned, in succession, by two brickwork and masonry companies: Diaden Masonry & Construction Company Limited (from April 22, 1987 to June 29, 2006) and Diaden Masonry & Construction L.P. (from June 29, 2006 to April 5, 2010). Those companies used a yard on the southwest corner of the property, extending up to and including the property line, to store equipment, vehicles, and supplies. Neither of the previous owners were ever charged with any violation of land-use bylaws. PPS has owned the property since April 5, 2010. [5] The Land Use By-Law was amended in 1991 to require a 40-foot buffer zone in a light industrial zone abutting a residential zone. This requirement did not exist when the original permit was issued in 1987. [6] In 2010, PPS applied for a permit to enlarge a building on the property. The application was rejected, but a revised application for a smaller addition was approved. After the approved addition was completed, PPS built the larger extension without permission. This resulted in PPS being charged under the HRM Charter and the Bylaw with: (1) unlawfully allowing a building without obtaining a permit; and (2) unlawfully allowing a building within the 40-foot buffer between the light industrial zone and the residential zone. [7] PPS pleaded guilty to the first count in July 2016. After pleading guilty, being fined and ordered to bring the property into compliance, PPS obtained a new development permit to renovate a commercial building, including a requirement to restore the 40-foot buffer. By August 11, 2016, PPS had removed the part of the building that was within the buffer. PPS continued (or resumed) using the buffer zone for storage. PPS was then charged with allowing occupancy of the buffer zone without a development permit. The specific charges were under s. 3(a) of Part 5 of the Bedford Land Use By-Law, which states: No building or structure shall be erected or altered, nor the use of any building, structure or lot be changed unless a development permit has been issued and no development permit shall be issued unless all the provisions of this by-law are satisfied. [8] Additionally, s.369 of the HRM Charter, inter alia, makes it an offence to violate a provision of the Act or a by-law, to fail to do something required by the act or by-law, or to permit anything to be done in violation of the Act or a by-law (s. 369(1)). The Trial Decision [9] The trial judge took note of the Agreed Statement of Facts and found there was “no significant factual dispute” (Decision at p.4). The issue was the application of the law to generally agreed facts. After referring to the earlier Bedford land-use bylaw, he stated that under the current bylaw the property was zoned “light industrial” and was abutting land zoned “residential” at the present time, “whatever it might have been at some time in the distant past” (Decision at p.5). [10] The trial judge noted that the first Diaden company had obtained a building permit in 1987, and that permit did not refer to a buffer or a fence, although it did indicate a location for “proposed parking”, without an express rear line for the parking area. The Bedford land-use bylaw had been amended in 1991 to require a 40-foot buffer in a light industrial zone abutting a residential zone. PPS had added an extension not authorized by permit, which was “at least partly within 40 feet of the rear boundary of the property” (Decision at p.6). As noted above, this construction led to the charges under the bylaw of building without a permit, and the guilty plea. The permit PPS subsequently obtained on July 20, 2016, included a condition that a “[f]orty foot wide buffer in rear must be reinstated with vegetation within 60 days” (Decision at p.7). The trial judge noted that PPS had removed the offending part of the building by August 11, 2016, as required by the compliance order (Decision at pp.7-8). [11] The trial judge concluded that there was undisputed evidence that: the entire rear yard of the property to the rear boundary line was used uninterrupted by [PPS] and its predecessors in title for the storage of heavy equipment and some products from when the 1987 permit was issued until the offending addition was built sometime before 2015. There is defence evidence as well that the entire rear yard has continued to be used uninterrupted to the present time even during construction and occupation of the unlawful addition. At no time before 2016 was [PPS] or its predecessors in title charged with committing an offence by using a buffer area on the property for parking or storage. [Decision at p.8.] [12] The trial judge went on to note that PPS claimed to be exercising a non-conforming use that had been in place since 1987. The HRM Charter permitted a non-conforming use to continue “if it exists and is lawfully permitted at the time of adoption or amendment of the Land Use By-Law” (Decision at p.8). He indicated that the defence had not taken the position that the use was lawful up to 1991, although this was arguable. He further stated that he was not aware of any authority that “a non-conforming use can be established by something like prescription or so called squatter’s rights by which interest in property can be acquired by use”, although the lack of action by the Municipality “for 25 years might be some indication that there had never been a violation because for example there might have been a fence” (Decision at p.9). He concluded: Constructing an extension to within less than 40 feet of the ... boundary line without a permit was unlawful and as such was not consistent with maintaining a non-conforming use. It is at least unlikely in any event that there was continuing use of the land in question for storage and parking during the construction of the extension or during the time it stood after construction. However, in light of the court’s order, that is in the previous case, and the conditions of the resulting development permit I find it unnecessary to decide whether the action of [PPS] caused it to lose its claim to an ongoing non-conforming use. [Decision at 9-10.] [13] The trial judge noted, although it was “probably not of great significance” in light of his other findings, that it was not clear what was meant by “buffer” in the 1991 Bedford Land-use Bylaw, “let alone what might be said with respect to the 1982 Bedford By-Law”, but that it meant at least “some kind of a transitional zone, something that visually separates one use from another – visually separates commercial light industrial use from a residential one” (Decision at p.10). [14] The trial judge said that to accept the defence position would be “to in effect overrule Judge Lenehan’s 2016 order and ignore the special conditions included in the resulting permit that led to the offending portion of the building being removed”, which he had no authority to do (Decision at pp.10-11). The trial judge concluded: As a result, since I’m satisfied that whatever might have been said before that unlawful extension was added to the building and whatever might have been said ... up to July of 2016 when Judge Lenehan made his order and the municipality issued its current development permit ... whatever might be said about the situation up to that time. I am satisfied that the Crown has established beyond a reasonable doubt that there was a violation of the first count that [PPS] unlawfully allowed occupancy of the 40 foot wide buffer zone at the rear of Bluewater Road without a development permit when it allowed – when it had storage and parking, or storage primarily, of heavy equipment and other things on that property during ... January to December of 2015, the time period covered by the charge. [Decision at 11.] [15] The trial judge accordingly convicted on the first count. HRM did not seek a conviction on the second count. The trial judge imposed a fine of $30,000 and a compliance order. Grounds of Appeal [16] The Amended Notice of Appeal filed by PPS on November 20, 2019, sets out several specific grounds of appeal alleging various errors that affected the trial judge’s decision. The issues identified in the parties’ factums are framed as follows: (a) Did the learned trial judge err in fact by finding that the appellant did not use the rear yard of the property for the storage of heavy equipment during and after the construction of the building? (b) Did the learned trial judge misconstrue the law regarding when a property owner loses its right to use its land in a non-conforming manner? Standard of Review [17] The parties agree that the applicable standards of review are those described by the Court of Appeal in Bidart Estate v. Portage La Prairie Mutual Insurance Company, 2018 NSCA 52. In that case, Bourgeois J.A. said, for the court: [18] The standard of review is not controversial. Errors of law attract a standard of correctness – the trial judge must get the law right. For findings of fact and inferences drawn therefrom, an error must be palpable and overriding to justify appellate intervention. A palpable error is one that is clear on the evidence. To justify this Court intervening, the error must also be overriding, meaning in the context of the whole case, it is so serious as to be determinative when assessing the balance of probabilities with respect to the fact in question. Findings of mixed fact and law are also reviewed for palpable and overriding error unless there is an extractable error of law... [18] A finding of fact without an evidentiary basis amounts to palpable and overriding error: Martin v. ALPC Housing Solutions Inc., 2020 NSCA 35, at paras. 34-35. Arguments (a) Error of fact [19] As background to the argument on the alleged error of fact, I note the following remarks of the trial judge: There’s undisputed defence evidence that the entire rear yard of the property to the rear boundary line was used uninterrupted by [PPS] and its predecessors in title for the storage of heavy equipment and some products from when the 1987 permit was issued until the offending addition was built sometime before 2015. There is defence evidence as well that the entire rear yard has continued to be used uninterrupted to the present time even during construction and occupation of the unlawful addition. [Emphasis added] ... [PPS] claims to be exercising a non-conforming use in existence since 1987. It’s common ground that the HRM Charter says a non-conforming use may continue if it exists and is lawfully permitted at the time of adoption or amendment of the Land Use By-Law... It’s arguable that there was a lawful use up to 1991 of an industrial parking or storage area screened by a fence, although defence has not made that argument. I have not been provided with nor am I aware of any case indicating that a non-conforming use can be established by something like prescription or so called squatter’s rights by which interest in property can be acquired by use. I will say that the failure of any municipality to take any action for alleged violation for 25 years might be some indication that there never had been a violation because for example there might have been a fence. Constructing an extension to within less than 40 feet of the ... boundary line without a permit was unlawful and as such was not consistent with maintaining a non-conforming use. It is at least unlikely in any event that there was continuing use of the land in question for storage and parking during the construction of the extension or during the time it stood after construction. However, in light of the court’s order, that is in the previous case, and the conditions of the resulting development permit I find it unnecessary to decide whether the action of [PPS] caused it to lose its claim to an ongoing nonconformal use. [Decision at pp.8-10.] [20] The appellant says there was no evidence to support a finding that it stopped using the rear yard for storing equipment during and after construction of the building. While HRM did argue at trial that the use of the rear yard for heavy equipment storage was abandoned during construction of the building, the appellant says, there was no evidence to support the HRM’s submission. The appellant says the evidence of Gregory Dowe, PPS’s owner and president, that the rear yard was used to store equipment during the entire time PPS had owned the property was the only evidence on this point. On Mr. Dowe’s redirect, the following exchange occurred: Q. ... So during this time that you had – or the company had to take the building down were you storing equipment at the back? A. Yes. Q. So you never stopped storing equipment at the back throughout the time that you were dealing with another legal process involving taking the building down? A. No. [21] It is also worth noting that the agreed statement of facts states, in part: 19. After the back portion of the building was removed, PPS has continued to use the 40-foot buffer for outdoor storage for their business... 20. PPS continues to use the buffer zone in its entirety for outdoor storage associated with their business. [22] The appellant further submits that the evidence could not support the inference that storage of equipment during or after construction would not have been possible. [23] Regarding the “no evidence” claim, HRM responds that “by constructing the building, PPS changed the use of the yard from outdoor storage to a building”, thereby abandoning the use of the area for outdoor storage. HRM therefore submits that the trial judge did not make the finding of fact suggested by the appellant. [24] In 2015, without a permit or approval, PPS constructed a building inside of that 40 foot buffer. That evidence is also undisputed and PPS plead guilty to an offence arising from that construction. Therefore, in the alternative, HRM says the finding was a reasonable one that should not be disturbed. The evidence to support the finding that outdoor storage was abandoned is the existence of the illegal construction. In any event, HRM says, this finding does not affect the result. [25] A trier of fact can accept some, none or all of a witness’s testimony. This must be done logically and not arbitrarily. The trial judge stated that there was “undisputed defence evidence that the entire rear yard of the property to the rear boundary line was used uninterrupted by [PPS] and its predecessors in title for the storage of heavy equipment and some products from when the 1987 permit was issued until the offending addition was built sometime before 2015.” [26] The trial judge also acknowledged that there was defence evidence (not described by him as “undisputed”) “that the entire rear yard has continued to be used uninterrupted to the present time even during construction and occupation of the unlawful addition.” However, he regarded it as “unlikely in any event that there was continuing use of the land in question for storage and parking during the construction of the extension or during the time it stood after construction.” The evidence did show that there was construction that occurred at the time. [27] The trial judge was aware of all of the evidence presented at the trial on this issue, considered this evidence, and simply rejected Mr. Dowe’s testimony that heavy equipment continued to be stored on an area that was under construction. The finding made by the trial judge was one he was entitled to make, it was a finding based on a consideration of all of the evidence presented at the trial, and it does not constitute palpable and overriding error. (b) Error of law [28] The appellant challenges the trial judge’s conclusion that it was not necessary to decide whether PPS had acquired the right to use the rear yard in a non-conforming manner. The appellant says this was an error of law. [29] HRM says the trial judge was correct in concluding that it was not necessary to decide the legal non-conforming use issue. The elements of the offence of unlawfully allowing occupancy of the buffer zone without a development permit are: (1) occupying the buffer, which PPS admits; and (2) doing so without a development permit. On the second element, the development permit that governed PPS’s activities specifically required PPS to restore the buffer. [30] Sections 253(1) and 255 of the HRM Charter describe the circumstances in which a right to a non-conforming use can be extinguished: Non-conforming structure or use 253 (1) A non-conforming structure, non-conforming use of land or non-conforming use in a structure, may continue if it exists and is lawfully permitted at the date of the first publication of the notice of intention to adopt or amend a land-use by-law. .... Non-conforming use of land 255 A non-conforming use of land may not be (a) extended beyond the limits that the use legally occupies; (b) changed to any other use except a use permitted in the zone; or (c) recommenced, if discontinued for a continuous period of six months. [31] According to the appellant, the trial judge was required to determine whether any of the three conditions of section 255 had been met. The appellant says that inquiry would have led to the conclusion that the non-conforming use had not been lost: Firstly, the construction of the building did not extend the physical limits of the area over which the appellant claimed the right of non-conforming use. The appellant has only ever claimed the right to use the Property in a non-conforming manner in the rear yard. Secondly, the construction of the building did not change the appellant’s use of the rear yard to a use not permitted in the zone. In fact, the construction of the building did not change the appellant’s use of the rear yard at all. The appellant continued to use the rear yard for the storage of heavy equipment during and after the construction of the building. Finally, the construction of the building did not result in a gap of at least six months in the appellant’s use of the rear yard for the storage of heavy equipment. The construction of the building did not result in any gap at all in the appellant’s use of the rear yard for the storage of heavy equipment. [32] The appellant says that as a result of the trial judge declining to rule on whether there was a surviving non-conforming use, PPS “was deprived of the adjudication of its defence, and therefore its right to a fair trial.” This deprival, the appellant submits, followed from the misapprehension of the evidence. [33] Even without the conditions of the current permit, HRM says it would be impossible for PPS to establish legal use by way of the 1987 development permit, because a non-conforming use must be legally in place before the by-law is amended. As authority, HRM cites Mehta v. Truro (Town)(1991), 104 N.S.R. (2d) 440, 1991 CarswellNS 93 (S.C.A.D.), an appeal of a Municipal Board decision refusing a building permit. The appellants had been using several apartment buildings in manner that contravened the applicable by-law. The original by-law was replaced by a new one, under which the use was also illegal. The appellant argued that certain amendments to the Planning Act “meant that a non-conforming use now need not have been previously lawful to continue to exist” (para. 6). Dismissing the appeal, the court held that “it is inherent in the concept of a non-conforming use that the use was lawful when it commenced and lawful prior to a change in a governing land use by-law” (para. 8). [34] HRM also cites Conception Bay South (Town) v. Jefford, [1998] N.J. No. 196, 1998 CarswellNfld 163 (S.C.T.D.), where the town sought an injunction ordering the respondent to cease all use and occupation of the subject property as a commercial garage contrary to zoning and development regulations. The respondent had applied for and received a permit to build a private garage. It emerged that the respondent had been conducting commercial activity on the property for several years, which did not conform to the existing zoning regulations. With respect to the general principles of non-conforming use, the court said: 9 There is one principle which applies, if not to all, then to most, laws on non-conforming uses, and that is, the use runs with the land and not with the owner, unless there is legislation to the contrary. So basically, the law is, that if you have a legal non-conforming use, it may be continued, even though the use is not in conformity with zoning regulations. For example, if you legally have a restaurant use in a certain area, and the zoning laws change, so as to prohibit restaurants in that area, then the legal non-conforming use may continue. [35] Further, the court said: 40 There is no doubt, that the commercial use of the subject property, is a non-conforming use, and there is also no doubt whatsoever, that the said commercial use of the subject property is not a legal non-conforming use, because there never was any permit or approval from the Town for same. Wesley Jefford, himself testified there was no permit for the commercial use of the property and that he never applied for same. The commercial use includes the parking and storing of commercial vehicles on the subject property. [36] The court relied on Mehta, among other cases, in concluding that “the commercial use of the subject property is not a legal or lawful non-conforming use...” (para. 50). [37] The trial judge stated that PPS had not argued that there had been “a lawful use up to 1991 of an industrial parking or storage area screened by a fence...” The appellant points out that an argument to this effect was in fact made in post-trial written submissions. Nonetheless, as HRM argues, the appellant has not shown that some prior non-conforming use could excuse PPS from its obligations. As the trial judge noted, this would effectively mean overturning the existing development permit. [38] As such, the appellant has not established that the trial judge erred in rejecting the various submissions respecting the effect of the 1987 permit. Moreover, it must be emphasized that the burden was on PPS to establish a legal non-conforming use: Halifax (Regional Municipality) v. Manship Holdings Ltd., 2007 NSSC 320, at paras. 27-32. [39] HRM also argues that if PPS had a legal non-conforming use allowing outdoor storage under the 1987 permit, that use changed to “commercial building” when PPS built the illegal extension, thereby extinguishing the non-conforming use. HRM says the most likely options for a non-conforming use under the Bedford Land-Use Bylaw are “Commercial Parking Lot”, “Outdoor Storage”, or “Parking Area/Lot.” As HRM submits, each of these definitions excludes structures, expressly or implicitly. However, PPS nevertheless built a structure in violation of the required 40-foot buffer at some point before 2015, which remained in place until July 2016. The creation of a structure is a different type of use from outdoor storage or parking. In short, even if PPS had an existing non-conforming use, it gave this up by building the structure. To the extent that PPS is claiming that the use was the same, this contradicts its guilty plea, which acknowledged that the structure was an illegal use. [40] The burden is on the appellant to establish that the trial judge erred in law in holding that it was unnecessary to determine whether there was an historic non-conforming use. In my view, the appellant has not shown that it was an error for the trial judge to conclude that any legal non-conforming use which might have existed was abolished as a consequence of the appellant’s construction in the buffer in violation of the 2010 permit, leading to the 2016 charges. The appellant did not object to the condition of that permit requiring reinstatement of the buffer. The trial judge held that the crucial point was that “[c]onstructing an extension to within less than 40 feet of the ... boundary line without a permit was unlawful and as such was not consistent with maintaining non-conforming use” (Decision at p.9). The appellant has not established that this was erroneous in law. Nor has the appellant established that the trial judge erred in concluding that to accept PPS’s position would, in effect, require him to overrule the 2016 order and to set aside the conditions of the subsequent permit, neither of which he had jurisdiction to do. Conclusion [41] The trial judge did not commit an error of fact, nor did he commit an error of law. Accordingly, the appeal is dismissed. [42] If the parties are unable to agree on costs, I will accept written submissions within 30 days of the release of this decision. Arnold, J.