Mississauga (City) v. Vandenbergh

Mississauga (City) v. Vandenbergh Collection Decisions of the Court of Appeal Date 1999-07-12 Docket numbers C28989 Judges Krever, Horace; Abella, Rosalie Silberman; Rosenberg, Marc Subject Civil Decision Content DATE: 19990712 DOCKET: C28989 COURT OF APPEAL FOR ONTARIO KREVER, ABELLA and ROSENBERG JJ.A. BETWEEN: ) ) THE CORPORATION OF THE CITY ) OF MISSISSAUGA and AGRIS ROBEZNIEKS, ) CHIEF BUILDING OFFICIAL FOR THE ) Brian Duxbury, CORPORATION OF THE CITY OF ) for the appellants MISSISSAUGA ) ) Applicants ) (Appellants in appeal) ) Roger Beaman, ) for the respondent - and - ) ) BARBARA VANDENBERGH, BARBARA ) ROSS and BARBARA ROSS also known as ) Heard: June 14 and 15, 1999 BARBARA ROSS VANDENBERGH ) ) Respondent ) (Respondent in appeal) ) ) ) On appeal from the judgment of Mr. Justice A. D. K. MacKenzie dated January 7, 1998 BY THE COURT: [1] This appeal from the judgment of MacKenzie J. involves the proper interpretation of the City of Mississauga zoning by-law. While the City sought various forms of relief in its application, the only issues dealt with by the motions judge, and that are before this court, concern the number of dwelling units in the respondent’s house at 1168 Stavebank Road and the effect on the premises of the zoning by-law and Ontario Regulation 384/94 under the Planning Act, R.S.O. 1990, c.P.13. For the reasons that follow, we are of the opinion that the appeal should be allowed. THE FACTS [2] The trial judge made these findings of fact that are not disputed on this appeal with respect to the respondent’s house at 1168 Stavebank Road i. Prior to 1953, the house was converted from a single dwelling unit to a double dwelling unit. ii. Sometime between July of 1987 (when the house was purchased by the respondent and her late husband) and November 1990, two additional units were added to the building. iii. A fifth unit, known as the “loft”, was added sometime during the summer of 1995. [3] The significance of the dates referred to in these findings is the following. The City zoning by-law did not come into force until 1953. At that time, s. 39 of the by-law designated the respondent’s property as R1, meaning a “one-family detached dwelling unit”. The City does not dispute that since the building had two dwelling units at that time, this was a lawful use.1 On November 12, 1990, the City enacted s. 1821 of the zoning by-law. The appellant’s property comes within that section and its designation is now “R1-Section 1821”. Section 1821 sets certain “performance standards”, such as the minimum total width of the side yards of the lots. We will set out the provisions of this section below. [4] The respondent has never applied for a building permit to authorize renovation of the house into four units. Furthermore, she has never applied for a minor variance or amendment to the zoning by-law. As a result of a complaint from a neighbour, the City began an investigation into the property and discovered the five dwelling units. THE LEGISLATION [5] The following parts of the City’s zoning by-law require some consideration: 33. Notwithstanding anything in this By-law, any large dwelling that was in existence on the 10th day of April, 1953, may be converted into 2 or more housekeeping units within the exterior walls that were in existence on the 10th day of April, 1953, and in accordance with the following regulations: (a) the minimum floor area of each such housekeeping unit in an "R1" zone is 102m2; 39. In "R1", "R2", "R3", "R4" and "R4(12)" zones: (1) Any person may: (a) erect or use a one-family detached dwelling on a lot; 1821. Notwithstanding their "R1" zoning, the lands delineated as "R1 – Section 1821" on Schedule "B" of this By-law shall only be used in compliance with the "R1" zone provisions contained in this By-law except that: (1) the minimum total width of the side yards of every lot other than a corner lot shall be: (a) 20% of the lot width for a one storey dwelling unit; (b) 27% of the lot width for a dwelling unit exceeding one storey in whole or in part; provided however that the side yards shall have a minimum width of 1.8 m plus an additional 0.61 m for each storey, or portion thereof, above one storey; (2) notwithstanding subsection 2(19) of this By-law the maximum dwelling unit height shall be: (a) 9.0 m as measured from established grade to the highest ridge of a sloped roof for all lots less than 22.5 m in width; (b) 9.5 m as measured from established grade to the highest ridge of a sloped roof for all lots equal to or greater than 22.5 m in width; (c) 7.5 m as measured from established grade to the top of a parapet of a flat roof; (3) the distance between established grade and the lower edge of the eaves of any dwelling unit shall not exceed 6.4 m; (4) the total gross floor area of all dwelling units or parts thereof on each lot shall not exceed 190 m2 plus 0.20 times the lot area; (5) for the purposes of this section, "GROSS FLOOR AREA" means the aggregate of the areas of each storey measured between the exterior faces of the exterior walls including the garage or any part of the dwelling unit used for the parking of motor vehicles; (6) notwithstanding any provision of this By-law to the contrary any dwelling unit in existence on or before the day this section comes into force (1990 Nov. 12), any dwelling unit for which a building permit has been issued on or before the day this section comes into force, or any dwelling unit for which a site development plan has been approved and for which a building permit application has been made on or before the day this section comes into force are considered to be in compliance with the zone provisions contained in this section. [Emphasis added.] [6] The respondent also relied upon O.Reg. 384/94 made under the Planning Act. This regulation, entitled “Apartments in Houses”, provides in s. 7(2) that “no planning document”, which would include a zoning by-law, “shall require that a residential unit in a house containing two residential units exceed the habitable floor area set out in” a table accompanying the regulation. The floor area in that table is less than minimum floor area specified in s. 33 of the zoning by-law. The units in the respondent’s house, while not in conformity with s. 33, do meet the requirements of s. 7(2) of the Regulation. THE MOTIONS JUDGE’S REASONS [7] The motions judge held that the term “dwelling unit” in s. 1821(6) of the zoning by-law could not be confined to a single family dwelling. He held that the four “dwelling units” in the respondent’s house as of November 12, 1990 were deemed to comply with all of the provisions of the by-law. The key part of the motion judge’s reasons is in the following paragraph: I have not been referred by counsel as to the definition of “dwelling unit” for purposes of section 1821 or, indeed, for the rest of the provisions of the by-law dealing with R1 uses. In the result, I find that the words “dwelling unit” as used in subsection 6 of 1821 cannot be construed so as to encompass a “one-family detached dwelling on a lot” as referred to in section 39(1)(a) of the By-law. I further find that the four dwelling units in the subject dwelling unit were in situ as of the operative date, being the 12th of November, 1990, and, having been used for residential purposes at the material time, they are in compliance with the zoning provisions contained in section 1821. [Emphasis added.] [8] As to the fifth, or “loft”, unit, the motions judge held that since this unit did not exist on November 12, 1990, it was not protected by s. 1826(1). The motions judge rejected the respondent’s argument, that this unit was protected by the Apartments in Houses regulation. There was no cross-appeal but, at the hearing of the appeal, counsel, in oral argument, sought leave to appeal from this holding under rule 61.07(3). This rule precludes the hearing of a cross-appeal where a respondent has not delivered a notice of cross-appeal, except with leave of the court hearing the appeal. Since there was no material before the court justifying an extension of time we refused to grant leave. THE POSITION OF THE PARTIES [9] Counsel for the appellant submits that the motions judge did not properly interpret s. 1821(6). He submits that s. 1821(6) protects existing dwelling units only in respect of the new requirements imposed in s. 1821(1) to (5) and does not validate previous illegal uses of the property. [10] Counsel for the respondent made two different arguments for upholding the result of the motions judge’s judgment. First, he supports the motions judge’s interpretation of s. 1821(6). In the alternative, he argues that the combined effect of s. 33 of the by-law and s. 7 of the Apartments in Houses regulations allows for at least four units in the house. ANALYSIS 1. Interpretation of s. 1821 of the zoning by-law [11] In our view, the motions judge erred in his interpretation of s. 1821. His error is in the emphasized portion of the reasons for judgment set out above. By its terms, s. 1821(6) deems residential units to be in compliance “with the zone provisions contained in this section”. This is consistent with the general theory of zoning that prior legal uses not be rendered illegal by subsequent changes in zoning, a theory also given statutory recognition in s. 34(9) of the Planning Act. See: I. W. Rogers, Canadian Law of Plannning and Zoning, (Scarborough: Carswell, 1973) §5.91 (loose leaf). The zone provisions set out in s. 1821 deal with such things as new standards for side yards. Section 1821(6) does not purport to validate all prior illegal uses of the lands zoned “R1-Section 1821”. Accordingly, subject to the respondent’s alternative argument, the appeal must succeed. 2. The combined effect of s. 33 of the Zoning By-law and s. 7 of O.Reg. 384/94 [12] Section 33 provides that any “large dwelling” that was in existence on April 10, 1953 may be converted into two or more housekeeping units within the exterior walls that were in existence on April 10, 1953, provided that the floor area of each unit meets certain minimum requirements. There is no definition of “large dwelling” but the appellant concedes that the respondent’s home would fit this description. There are a number of reasons, however, why s. 33 has no application. First, none of the four units meets the minimum floor area requirements, and so none of the four units can be permitted under s. 33. Second, the exterior wall in relation to at least one of the units has been altered since 1953 and so, at most, s. 33 would authorize only three of the four units. [13] In our view, the Apartments in Houses regulation is of no assistance to the respondent. Section 7 of that regulation, in effect, waives the minimum floor area requirements, such as those in s. 33, for a “house containing two residential units”. This house contains four units, not two, and therefore s. 7 does not apply. In an ingenious submission, counsel for the respondent argued that s. 7 applies because this is a semi-detached house. On this theory, each half of the semi-detached house is a “house containing two residential units”. Therefore, each half of the semi-detached house could contain two residential units for a total of four units, provided each unit met the minimum floor area requirements in s. 7 of the regulation. This argument cannot succeed. The motions judge considered this argument in relation to the fifth, or “loft”, unit. He held that this was not a semi-detached house and that the regulation did not apply. We agree with his conclusion. This was a single-family dwelling that had been converted into four (or five) units. DISPOSITION [14] Accordingly, the appeal is allowed and there will be a declaration that a maximum of two residential dwelling units are allowed at 1168 Stavebank Road, Mississauga. MacKenzie J. made no order for costs of the motion and we would make no order for costs of the appeal. (signed) "H. Krever J.A." (signed) "R. S. Abella J.A." (signed) "M. Rosenberg J.A." RELEASED: July 12, 1999 _______________________________ 1 See s. 34(9) of the Planning Act, which provides that no by- law passed under that section applies “to prevent the use of any land, building or structure for any purpose prohibited by the by- law if such land, building or structure was lawfully used for such purpose on the day of the passing of the by-law, so long as it continues to be used for that purpose”.