The Legal Nonconforming Rights Trilogy In Ontario

• Published date: 19 May 2021
• Subject Matter: Real Estate and Construction, Construction & Planning, Real Estate
• Law Firm: Gowling WLG
• Author: Mr Jacob Polowin and Michael Polowin

The concept of legal nonconforming rights (also known as "acquired rights" or "grandfathering") has undergone a great deal of evolution and clarification in recent years. The municipal group at Gowling WLG is proud to have participated in a number of the cases that have solidified property owners' rights.

Legal nonconforming rights are one of the most powerful protections afforded to landowners under land use planning law. The concept provides that, simply put, zoning by-laws cannot apply retroactively. If a use of land, a building, or a structure was legal on Monday, a zoning by-law passed that day cannot render it illegal by Tuesday.

The concept is codified in s. 34(9) of the Planning Act, which explicitly provides that a zoning by-law cannot prohibit the use of land, a building, or a structure that was lawfully commenced on the date the by-law was passed. Under the common law, the protections for legally nonconforming rights are even stronger. A series of decisions dating back to the 1950s, including from the Supreme Court, have established that owners also have a right to evolve or reasonably expand or intensify a legally nonconforming use, provided that the evolution, expansion or intensification does not cause undue adverse impacts on the surrounding neighbourhood or area.

For clarification, "legally" and "lawfully" has nothing to do with building permits. It is simply a measurement of whether the use was allowed by zoning bylaws. Indeed, if a structure predates zoning bylaws on the property, then it is permitted to continue.

Despite their importance to landowners, the full scope of legal nonconforming rights are often not well understood, either by the property owners that benefit from them, their lawyers, land-use planners, or the municipal decision-makers that must respect them. Legal nonconforming rights are also a frequent source of tension between landowners and municipalities. Too often, municipal decision-makers intentionally seek to curtail property owners' legally nonconforming rights, viewing those rights as mere impediments to municipal policy, rather than important and established legal protections. It is a truism that "planners like to plan".

However a trilogy of cases successfully argued by Gowling WLG Ottawa's Municipal Group have clarified the state of the law in Ontario regarding legal nonconforming rights in Ontario. This series of cases commenced in 2009 with the Ontario Municipal Board's ("OMB") decision in Re TDL Group Corp.,¹which was subsequently upheld by the Ontario Divisional Court.² In 2018, the OMB relied on TDLin Brougham v. South Frontenac,³ which further expanded the protections for legally nonconforming uses. Finally, in 2020, the Local Planning Appeal Tribunal ("LPAT", the successor to the OMB) completed the Trilogy with its decision in Fraser v. Rideau Lakes.⁴

Together, these cases have clarified and expanded clarified and expanded the protections and flexibility for property owners with legally non-conforming rights, including by rendering zoning bylaws and Official Plansultra vireswhen they purported to limit or eliminate those rights.

The Supreme Court's formulation of nonconforming rights - Central Jewish Institute and Saint Romuald

Two Supreme Court of Canada decisions, separated by more than 50 years, form the basis of our Trilogy of cases. In the first, Central Jewish Institute,⁵ the Supreme Court established that because the protection of legally nonconforming rights attaches to a building, a nonconforming use of only part of a building can later be expanded to the entire building, as of right. For example, a legally nonconforming restaurant that occupies only the first floor of a building can expand to the second floor, even after the enactment of a zoning by-law purporting to prohibit the use in that location.

In the second decision, Saint-Romuald,⁶ the Supreme Court confirmed that under the common law, property owners have a right not only to continue a legally nonconforming use, but also to reasonable flexibility in that use, including evolution, intensification, or expansion. Writing for the majority, Justice Binnie outlined seven principles to delineate limitations on the owner's acquired rights:

1. The nature of the legally nonconforming use is defined as the activities actually carried out at the site prior to the new by-law restrictions.
2. Where the current use is a mere intensification of the pre-existing activity, as opposed to a difference in kind, it will rarely be open to objection.
3. New activities that expand beyond the pre-existing uses may not be protected under the non-conforming use.
4. When activities that are ancillary or closely related to the pre-existing use are added, the Court must balance the landowner's interest...