One Chestnut Park Road v. Toronto (City)

JUDSON J.:-The appellants are under an injunction to refrain from using 1 Chestnut Park Road, Toronto, as offices for doctors and a physiotherapist. The injunction is based upon a continuous violation of the City of Toronto Zoning By-law No. 18642, as amended by By-laws Nos. 18878 and 19093. The injunction was granted on October 30, The unlawful user began in 1957 after the appellant Paul F. McGoey purchased a large residential building containing about thirty rooms and converted it into offices. The infringement of the by-law is clear and has been persistent, continuous and defiant since 1957. The details are set out in the reasons for judgment of Aylen J.

Every possible step seems to have been taken by the appellants to obtain an amendment to the by-law but they 1 (1962), 35 DL.R. (2d) 106.

COUR SUPRRME DU CANADA

R.C.S.

have all failed. Finally, on October 24, 1960, the city issued 'a a writ for an injunction and obtained judgment on Octo- ONE ber 30, 1961. This was affirmed by the Court of Appeal' on R O September 14, 1962.

et al. The claim for the injunction was based on s. 497 of The Municipal Act, R.S.O. 1950, c. 243, which reads:

Judson J. 497. Where any by-law of a municipality or of a local board thereof, passed under the authority of this or any other general or special Act, is contravened, in addition to any other remedy and to any penalty imposed by the by-law, such contravention may be restrained by action at the instance of a ratepayer or the corporation or local board. The substantial defence at trial and before the Court of Appeal was based upon the effect of the decision of this Court in Township of Scarborough v. Bondi , and the validating legislation of 1960. The result of the decision in Township of Scarborough v. Bondi was that the zoning by-law 18642 was invalid because of the lack of the approval of the Ontario Municipal Board before it was passed. To overcome this defect, the Legislature enacted an amendment to The Planning Act by 8-9 Eliz. II (1960), c. 83, s. 5, which reads:

5. (1) A by-law repealing or amending a by-law passed under section 390 of The Municipal Act or a predecessor of that section is not invalid and shall be deemed never to have been invalid solely because of the lack of approval by the Ontario Municipal Board prior to the passing thereof by the municipal council.

(2) Subsection 1 does not apply to a by-law that never at any time received approval by the Ontario Municipal Board and does not affect the rights acquired by any person from a judgment or order of any court prior to the day on which this Act comes into force, or affect the outcome of any litigation or proceedings commenced on or before the 23rd day of March, 1960.

1 D.L.R. (2d)

gave the city no status to maintain this action and that the action could only be maintained by the Attorney General as o. plaintiff or as plaintiff on the relation of any interested peral. son. The appellants seek to draw an analogy between the crr action authorized by s. 497, above quoted, and one for the abatement of a public nuisance. In the case of a public nuisance, the Attorney General may, on the information of a private individual, maintain an action for nuisance. A private individual can only maintain an action for a public nuisance if he can show some particular and special loss over and above the ordinary inconvenience suffered by the public at large. Then the nuisance becomes a private one and he can sue in tort. The reason for the rule is to prevent multiplicity of actions.

I can see no analogy between the right of action given by s. 497 for the enforcement of a municipal by-law and the enforcement of a remedy for a public nuisance. The principal cases on which the appellants rely are: Wallasey Local Board v. Gracey'; Tottenham Urban District Council v. Williamson & Sons, Limited'; Boyce v. Paddington Borough Council'. These are based on this principle. When public health legislation in the 19th century began to create nuisances by statute, at the same time it gave local authorities the right to cause proceedings to be taken against any person in any superior court of law or equity to enforce the abatement or prohibition of any nuisance under the Act. The Courts held that these were public nuisances and would have to be restrained in the usual way at the suit .of the Attorney General.

This procedural technicality, for which there was sound reason in the case of a public nuisance, has no application to a proceeding by a municipality to enforce its own by-law. Municipal by-laws usually provide for a penalty for nonobservance but the legislature has recognized that unless there is a stronger remedy, a penalty may become a mere licence fee. Something equivalent to s. 497 may be traced back in the legislation to 4 Edw. VII (1904), 22, s. 19. The Ontario Court of Appeal had held in City of Toronto v. Solway' that the infringement of a by-law relating to the location, erection and use of buildings for stables for horses