Saint-Romuald (City) v. Olivier

Saint-Romuald (City) v. Olivier
Collection
Supreme Court Judgments
Date
2001-09-27
Neutral citation
2001 SCC 57
Report
[2001] 2 SCR 898
Case number
27210
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise
On appeal from
Quebec
Subjects
Municipal law
Notes
SCC Case Information: 27210
Decision Content
Saint-Romuald (City) v. Olivier, [2001] 2 S.C.R. 898, 2001 SCC 57
City of Saint-Romuald Appellant
v.
Claudette Olivier, Louise Bolduc, Roger Bolduc,
all three carrying on business as “Les Immeubles
Jancloroc enr.”, and 9010-4407 Québec Inc. Respondents
Indexed as: Saint-Romuald (City) v. Olivier
Neutral citation: 2001 SCC 57.
File No.: 27210.
2000: December 5; 2001: September 27.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Major, Bastarache, Binnie and Arbour JJ.
on appeal from the court of appeal for quebec
Municipal law – Zoning by-laws – Scope of acquired rights – Legal non-conforming use – Definition of purpose of a pre-existing use – Variation, extension or alteration of a use – Nightclub substituting nude dancers for western signers – Whether change in form of entertainment constitutes illegal replacement of original non‑conforming use with other non-conforming use – Whether change in form of entertainment amounts to forfeiture of acquired right to operate nightclub.
The individual respondents are owners of a building located within the territory of the appellant City where country and western entertainment had been presented since 1990. In 1991, a new zoning by-law came into force under which uses “restaurant or bar with entertainment” and “restaurant or bar with erotic entertainment or films” are not permitted although they are not expressly prohibited. The by-law also provides that a non-conforming use protected by acquired rights may not be replaced by another non-conforming use. In 1994, the respondent corporation bought out the business and began operating a bar which presented entertainment involving nude dancers. The appellant tried to obtain an order requiring the cessation of what it regarded as the unlawful replacement of one non-conforming use by another. The Superior Court dismissed the appellant’s application on the ground that the respondents enjoyed acquired rights. The Court of Appeal affirmed that decision.
Held (L’Heureux-Dubé, Gonthier and Bastarache JJ. dissenting): The appeal should be dismissed.
Per McLachlin C.J. and Major, Binnie and Arbour JJ.: The Act Respecting Land Use Planning and Development allows Quebec municipalities to regulate acquired rights, prevent their substitution by other non-conforming uses, and prohibit their extension and alteration. The municipality may not, however, order the cessation of such uses unless they have been abandoned or interrupted for “a reasonable period” no shorter than six months. Here the municipality did not purport to prohibit the alteration of acquired rights nor did it purport to suppress nude dance bars under the Cities and Towns Act. The general language of s. 9 of the by-law is not sufficient to constitute an express prohibition sufficient to overcome the respondents’ acquired rights.
Under the doctrine of “acquired rights”, while the respondents are not entitled to use the premises for any use within a category previously permitted under the by-law but only to continue to use the premises as they were when the new by-law was passed, they are given some flexibility in the operation of that use. In general, merely continuing the precise pre-existing activity, even at an intensified level, is protected unless the intensification is of such a degree as to create an altogether different use. Both remoteness and neighbourhood effects have a role to play in the proper disposition of this type of case. Each contributes to the real and natural expectation of the landowner. The landowner overreaches itself if (i) the scale or intensity of the activity can be said to bring about a change in the type of use, or if (ii) the addition of new activities or modification of old ones is seen by the Court as too remote from the earlier activities to be entitled to protection, or if (iii) the new or modified activities can be shown to create undue additional or aggravated problems for the municipality, the local authorities, or the neighbours. The factors are balanced against one another.
The issue of limitations on the respondents’ acquired right should therefore be approached as follows: (1) It is firstly necessary to characterize the purpose of the pre-existing use actually carried on at the site. (2) Where the current use is merely an intensification of the pre-existing activity, it will rarely be open to objection unless the intensification is such as to constitute a different use altogether. (3) To the extent a landowner expands its activities beyond those it engaged in before, the added activities may be held to be too remote from the earlier ones to be protected under the non-conforming use. In such a case, it is unnecessary to evaluate “neighbourhood effects”. (4) To the extent activities are added, altered or modified within the scope of the original purpose, the Court has to balance the landowner’s interest against the community interest, taking into account the nature of the pre-existing use, the degree of remoteness and the new or aggravated neighbourhood effects. The greater the disruption, the more tightly drawn will be the definition of the pre-existing use or acquired right. (5) Neighbourhood effects, unless obvious, should be established by evidence if they are to be relied upon. (6) The resulting characterization of the acquired right should not be so general as to liberate the owner from the constraints of what he actually did, and not be so narrow as to rob him of some flexibility in the reasonable evolution of prior activities. (7) While the definition of the acquired right will always have an element of subjective judgment, the criteria mentioned above constitute an attempt to ground the Court’s decision in the objective facts. The outcome of the characterization analysis should not turn on personal value judgments.
Substitution of nude dancers for western singers is not such an extreme variation in the nightclub or cabaret formula as to constitute a wholly different and therefore unprotected use. The respondents’ pre-existing use can appropriately be characterized as the commercial offering of a combination of food, drink, ambiance and lawful entertainment to the public. The switch to a different form of entertainment is within this general nightclub purpose.
Per L’Heureux-Dubé, Gonthier and Bastarache JJ. (dissenting): Acquired rights confer immunity on the actual use of land being exercised before a change to the by-law, while merely contemplated use will not enjoy the same immunity. If the use undertaken after the change to the by-law is of the same nature as the actual use under the former by-law, it will be protected by acquired rights. In order to determine whether the nature of the use has changed, the use that was actually exercised prior to the prohibition created by the by-law must first be defined. Whether a change in the nature of the use has occurred must be determined on the basis of the real and natural expectations of the user and the extent to which the amendments serve the purposes of land-use by-laws. Nevertheless, each case turns on its own facts and the nature of the use protected by acquired rights must be determined by the court having regard to the unique facts of each situation.
The appellant prohibited uses “restaurant or bar with entertainment” and “restaurant or bar with erotic entertainment or films” by not expressly permitting them. The requirement for such an express prohibition on presenting erotic entertainment, which the lower courts sought to impose, is unnecessary, since it is based directly on the erroneous use of the “category” approach, which holds that the exercise of a use that falls within a category prescribed by the enacting authority creates an acquired right that extends to any use that falls within that category.
The real and natural expectations of the owner of a country and western bar do not include operating a bar with nude dancers, there being a significant difference in the nature of the two types of entertainment. However, that distinction becomes even more germane when we examine it with the objectives of harmonious development and welfare, which land use legislation is intended to advance, in mind. Efforts to advance those objectives may indeed be informed by considerations of a moral nature, as long as those considerations relate to the primary purposes of the by‑laws. In the instant case, one use has indeed been illegally replaced by another, rather than the same use being continued. This change results in loss of the protection conferred by acquired rights.
Cases Cited
By Binnie J.
Followed: Central Jewish Institute v. City of Toronto, [1948] S.C.R. 101; considered: Campbellton (City) v. Thompson (1994), 151 N.B.R. (2d) 1; Lordon v. Pitman (1980), 33 N.B.R. (2d) 23; referred to: Heutinck v. Oakland (Township) (1997), 42 M.P.L.R. (2d) 258; Vancouver (City of) v. Victoria Block Ltd. (1964), 45 D.L.R. (2d) 118; Glenelg (Township) v. Davis (1992), 10 M.P.L.R. (2d) 260; Nanaimo (City) v. Brickyard Enterprises Ltd., [1993] B.C.J. No. 992 (QL); Appleby v. Erie Tobacco Co. (1910), 22 O.L.R. 533; Macievich v. Anderson, [1952] 4 D.L.R. 507; Rylands v. Fletcher (1868), L.R. 3 H.L. 330; Re Daly and City of Vancouver (1956), 5 D.L.R. (2d) 474; Re Lorne Park (1913), 30 O.L.R. 289; Boykiw v. Calgary (City) Development Appeal Board (1992), 90 D.L.R. (4th) 558; Re Dinnick and McCallum (1913), 28 O.L.R. 52; Regina Auto Court v. Regina (City) (1958), 25 W.W.R. 167; Canadian Occidental Petroleum Ltd. v. District of North Vancouver (1983), 148 D.L.R. (3d) 255; Toronto (City of) v. Wheeler (1912), 4 D.L.R. 352; R. v. Howard (1884), 4 O.R. 377; R. v. Clark Bros. & Hughes Ltd., [1925] 1 D.L.R. 49; Soudure Mobile D. Pilon Inc. v. Larose, [1990] R.L. 93; O’Sullivan Funeral Home Ltd. v. City of Sault Ste. Marie, [1961] O.R. 413; Kiss v. Phil Dennis Enterprises Ltd. (1974), 46 D.L.R. (3d) 196; Perth (Town) v. Perth Mews Ltd. (1991), 7 M.P.L.R. (2d) 259; Magdalena’s Rest Home Ltd. v. Etobicoke (City) (1992), 12 M.P.L.R. (2d) 316; Moncton (City) v. Como (1990), 103 N.B.R. (2d) 286; Borins v. Toronto (City) (1988), 50 R.P.R. 43; 382671 Ontario Ltd. v. London (City) Chief Building Official (1996), 32 M.P.L.R. (2d) 1; R. v. Grant (1983), 23 M.P.L.R. 89; Regina ex rel. Skimmings v. Cappy (1952), 103 C.C.C. 25; R. v. Kelly Landscape Contractors Ltd. (1980), 13 M.P.L.R. 67; Val-d’Or (Ville de) v. 2550-9613 Québec Inc., [1997] R.J.Q. 2090; East Barnet Urban District Council v. British Transport Commission, [1962] 2 Q.B. 484; Thames Heliports PLC v. London Borough of Tower Hamlets (1996), 74 P. & C.R. 164; Bridgewater (Town of) v. Chuckran, 217 N.E.2d 726 (1966); Conforti v. City of Manchester, 677 A.2d 147 (1996); Belleville (Town of) v. Parrillo’s, Inc., 416 A.2d 388 (1980); Cape Resort Hotels, Inc. v. Alcoholic Licensing Board of Falmouth, 431 N.E.2d 213 (1982); Prince Edward Island Museum and Heritage Foundation v. Charlottetown (City) (1998), 161 Nfld. & P.E.I.R. 56; Nepean (City) v. D’Angelo (1998), 49 M.P.L.R. (2d) 243.
By Gonthier J. (dissenting)
Chutes-de-la-Chaudière (Municipalité régionale de comté des) v. Compagnie 1846-0832 Québec Inc., [1994] R.J.Q. 618; Huot v. L’Ange-Gardien (Municipalité de), [1992] R.J.Q. 2404; Toronto v. Board of Trustees of R.C. Separate Schools for Toronto, [1925] 3 D.L.R. 880; Central Jewish Institute v. City of Toronto, [1948] S.C.R. 101; Syndics des écoles protestantes de la Cité d’Outremont v. Cité d’Outremont, [1951] Que. K.B. 676; Lafontaine (Municipalité du Village) v. Ouellette, [1976] C.S. 1488; Montréal (Ville de) v. Bijouterie Lucien Gervais Inc., [1981] J.M. 21; Bernard v. Ville de Belœil, C.A. Montréal, No. 500-09-000857-896, November 29, 1990, J.E. 91-20; Anjou (Ville d’) v. Vanier, C.A. Montréal, No. 500- 09-001305-788, J.E. 83-325; Soudure Mobile D. Pilon Inc. v. Larose, [1990] R.L. 93; Girard v. St-Irénée (Municipalité de), [2000] R.J.Q. 2689; St-Michel-Archange (Municipalité de) v. 2419-6388 Québec Inc., [1992] R.J.Q. 875; Saint-Raymond (Ville) v. Entreprises Benoît Demers Inc., [1996] Q.J. No. 4387 (QL); Squillante v. Zoning Board of Appeals of the City of Hartford, 1997 Conn. Super. Lexis 2612; Marzocco v. City of Albany, 629 N.Y.S.2d 847 (1995); Val-d’Or (Ville de) v. 2550-9613 Québec Inc., [1997] R.J.Q. 2090; Moncton (City) v. Steldon Enterprises Ltd. (2000), 225 N.B.R. (2d) 11; Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976); Renton (City of) v. Playtime Theatres, Inc., 475 U.S. 41 (1986); 538745 Ontario Inc. v. Windsor (City) (1988), 64 O.R. (2d) 38.
Statutes and Regulations Cited
Act Respecting Land Use Planning and Development, R.S.Q., c. A-19.1, ss. 113, 227 [am. 1993, c. 3, s. 78; am. 1994, c. 32, s. 21].
Cities and Towns Act, R.S.Q., c. C-19, ss. 410, 414.
Civil Code of Québec, S.Q. 1991, c. 64, art. 947.
Criminal Code, R.S.C. 1985, c. C-46, ss. 163(2) (b), 167 , 173(1) .
Municipal Act, R.S.O. 1990, c. M.45, s. 225 [am. 1996, c. 1, Sched. M, s. 13].
Saint-Romuald By-law 273-90, ss. 7, 9, 10, 11, 16, 22, 204.
Authors Cited
Giroux, Lorne. “Questions controversées en matière de droits acquis”, dans Développements récents en droit municipal (1994). Cowansville: Yvon Blais, 1994, 131.
Grand Larousse de la langue française, t. 1. Paris: Librairie Larousse, 1971, “cabaret”.
Grand Robert de la langue française, t. 2, 2e éd. Paris: Le Robert, 1986, “cabaret”.
Kagan, Ira T. “But I Do Not Want to Be Legal” (1993), 13 M.P.L.R. (2d) 252.
McQuillin, Eugene. The Law of Municipal Corporations, 3rd ed. Revised vol. 8A by Julie Rozwadowski and James Solheim. Mundelein, Ill.: Callaghan, 1994.
Milner, James Bryce. Community Planning: A Casebook on Law and Administration. Toronto: University of Toronto Press, 1963.
APPEAL from a judgment of the Quebec Court of Appeal, [1999] Q.J. No. 215 (QL), affirming a decision of the Superior Court dismissing the appellant’s application for an order requiring the cessation of a non-conforming use. Appeal dismissed, L’Heureux-Dubé, Gonthier and Bastarache JJ. dissenting.
Jacques Tremblay and Bertrand Gobeil, for the appellant.
François Marchand, for the respondents.
The judgment of McLachlin C.J. and Major, Binnie and Arbour JJ. was delivered by
1 Binnie J. – The Court’s objective on this appeal is to find the proper balance between an individual’s right to the continued use and enjoyment of his or her property and the power of the community, expressed through the local municipality, to enhance, by changing the land use regulations, the amenities of surrounding and other affected landowners. As the case arises in Quebec, the specific issue raised is the limitation of previously acquired rights under the Civil Code. However, as this is a public law matter, the principles of land use regulation applicable in the common law provinces concerning legal non-conforming uses are also relevant.
2 The facts are straightforward. The respondents’ country and western cabaret was renamed L’Extase (“Ecstasy”) and the singing cowboys and cowgirls were replaced by nude dancers. Business improved. The bar was said to be [translation] “very busy”. The police increased surveillance, but their heightened interest seemed related to a concern over potential impaired drivers (a concern they have with other bars and nightclubs as well) and the opportunity to look for people against whom warrants were outstanding or who were thought to be in breach of court orders. The evidence was that there was no problem of discipline within the bar itself. Further, there was no evidence that nude floor shows attract more clients in trouble with the law than regular bars or that L’Extase in fact attracted a more problematic clientele than it did when it was a country and western bar.
3 My colleague Gonthier J. takes the view that by changing the form of entertainment the respondents forfeited their acquired right to operate the nightclub. With respect, I believe such a result would tilt the balance too far in favour of the municipality. I agree with the conclusion of the unanimous Quebec Court of Appeal and would dismiss the appeal.
I. The Issue
4 The facts and applicable enactments are outlined in my colleague’s reasons for judgment. I fully agree with his rejection of the “categorical” approach. This is the theory under which an owner, whose use of land does not conform to a new by-law, nevertheless has an “acquired right” to expand, alter or modify an existing use to include anything and everything permitted on that land under the “use category” defined in the prior law (if indeed there was a prior law). While the “categorical” approach may produce a fair result on the facts of this case, it does so only because the categories of use created by the prior by-law were quite narrow. The word “cabaret”, which was the operative “use” category in the previous by-law, is quite precisely defined in Le Grand Robert de la langue française (2nd ed. 1986), vol. 2, at p. 242, inter alia, as:
[translation]
2. Establishment presenting satirical, musical or other types of entertainment where patrons may drink, dine or dance. A Café concert; nightclub.
and in Grand Larousse de la langue française (1971), vol. 1, at p. 551:
[translation]
2. Small establishment presenting artistic or satiric entertainment where patrons may drink, sometimes dine, dance ....
5 However, as my colleague Gonthier J. demonstrates, the “categorical” approach is wrong in principle and will often deliver a result that unduly favours individual landowners at the expense of the community interest. The protected “acquired right” properly relates only to the status quo. It does not protect a potential or contemplated use that has never materialized. A similar rule prevails in the common law provinces: see Heutinck v. Oakland (Township) (1997), 42 M.P.L.R. (2d) 258 (Ont. C.A.), at para. 6:
Central to this analysis is our reliance upon the well established rule that the nature of a non-conforming use is not defined by reference to definitions in the by-law. Rather, it must be determined by reference to the use to which the property was put at the time the by-law was passed.
To the same effect, see: Vancouver (City of) v. Victoria Block Ltd. (1964), 45 D.L.R. (2d) 118 (B.C.C.A.), at p. 121; Glenelg (Township) v. Davis (1992), 10 M.P.L.R. (2d) 260 (Ont. C.A.); Nanaimo (City) v. Brickyard Enterprises Ltd., [1993] B.C.J. No. 992 (S.C.) (QL), at para. 20. The acquired right is no more than a right to carry on using the land for the purpose to which it was in fact previously being put. The issue, of course, is how widely or narrowly to circumscribe the description of the purpose of that “pre-existing use”.
II. The Pre-Existing Use
6 As stated, the premises in question here have been used as a nightclub (or “cabaret”) for many years. Such use is no longer permitted in the relevant zone under the revised provisions. Choice of a broad definition (“nightclub”) or a narrow definition (“country and western nightclub”) of the pre-existing use will largely determine the outcome of the appeal.
7 The necessity of making a careful choice of definition requires us to look realistically at the business being conducted on the premises prior to the new zoning by-law. Nightclubs or “cabarets” constitute a fickle industry. They rise and fall on swings of popularity. Their operators are forever in search of a “winning formula”. Location, we are told, is basic, but beyond that the elements of food, drink, ambiance and entertainment are endlessly varied to generate customer interest. A few years ago, customers may have flocked to hear western singers accompanied by steak and potatoes. Some still do. Irish pubs usually offer Irish melodies, but may have to be transformed next season into a different ambiance offering Karaoke. Last year’s successful disco may give way to this year’s Texas line dancers. Land used for these purposes serves merely as a platform for a business offering a marketable mix of food, drink and lawful entertainment to the public.
8 The appellant takes the position that substitution of nude dancers for western singers is such an extreme variation in the nightclub or cabaret formula as to constitute a wholly different use. I do not agree. It is open to the municipality as a legislator to introduce such value judgments into its land use controls (as it did here under the new by-law), but I do not think the landowner’s “acquired right” to continue to carry on business can retroactively be truncated in this way on the present state of the law.
III. The Role of Zoning
9 Private law has long protected adjoining owners in the enjoyment of the amenities of their land. Article 947 of the Civil Code of Québec, S.Q. 1991, c. 64, protects that enjoyment, as does the tort of nuisance at common law. Thus neighbours obtained an injunction in nuisance against a tobacco factory that emitted “noxious odours” in Appleby v. Erie Tobacco Co. (1910), 22 O.L.R. 533 (Div. Ct.), and on the same basis successfully opposed the establishment of a dog hospital in a residential area in Macievich v. Anderson, [1952] 4 D.L.R. 507 (Man. C.A.). The doctrine of Rylands v. Fletcher (1868), L.R. 3 H.L. 330, imposes virtually absolute liability on owners who bring on their land “anything likely to do mischief if it escapes” and causes damage to a neighbour, unless the escape was due to the neighbour’s default (pp. 339-40). These private law remedies were designed, in a general sense, to protect neighbourhood amenities.
10 The objectives of modern zoning were also accomplished to some extent by private arrangement using restrictive covenants as in Re Daly and City of Vancouver (1956), 5 D.L.R. (2d) 474 (B.C.S.C.), and building schemes as in Re Lorne Park (1913), 30 O.L.R. 289 (H.C.). These earlier developments in the law are noted in Boykiw v. Calgary (City) Development Appeal Board (1992), 90 D.L.R. (4th) 558 (Alta. C.A.), at p. 563, and described in some detail in J. B. Milner, Community Planning (1963), at p. 357 et seq. Initially, local government occupied itself with noxious uses, and established building standards in the interest of fire prevention and safety.
11 The objection to more sophisticated land use controls, when they emerged as an instrument of good government, was that they were to some extent confiscatory of the owner’s rights: see Re Dinnick and McCallum (1913), 28 O.L.R. 52 (C.A.), at p. 58, Regina Auto Court v. Regina (City) (1958), 25 W.W.R. 167 (Sask. Q.B.), at pp. 168-69; and Canadian Occidental Petroleum Ltd. v. District of North Vancouver (1983), 148 D.L.R. (3d) 255 (B.C.S.C.), at p. 269.
12 To counter the concern about confiscation without compensation, lawful existing uses came to be protected under the concept of “acquired rights” both under the Civil Code in Quebec, and by judicial interpretation in the common law provinces: Toronto (City of) v. Wheeler (1912), 4 D.L.R. 352 (Ont. H.C.), per Middleton J., at p. 353:
[I]t is, I think, a sound principle that the Legislature could not have contemplated an interference with vested rights, unless the language used clearly required some other construction to be given to the enactment.
See also R. v. Howard (1884), 4 O.R. 377 (Q.B.), at p. 381, and R. v. Clark Bros. & Hughes Ltd., [1925] 1 D.L.R. 49 (Man. C.A.), at pp. 51 and 53.
13 It is against that background that the modern regime of land use controls, with their inherent tension between the owner’s interest in putting its own property to what it regards as the optimal use and the municipality’s interest in having all of the land within its boundaries organized in a plan which it thinks will maximize the benefits and amenities for all inhabitants, should be interpreted.
IV. The Applicable Legislation
14 An Act Respecting Land Use Planning and Development, R.S.Q., c. A-19.1, authorizes Quebec municipalities to regulate the use of land by dividing their territories into zones to which are allocated various groups and classes of uses. This is to be done: [translation] “based on common characteristics of land occupation relating to volume, nuisance, compatibility, use and aesthetics” (s. 16 of the new zoning by-law). The impact of a particular land use on neighbouring lands is clearly a key concern, which is shared by common law jurisdictions. The loss of amenities by noise and air pollution, increased traffic, increased demands on municipal services, or other disruptions, may conveniently be referred to as “neighbourhood effects”. The minimization of such adverse effects on surrounding owners or the community as a whole is one of the principal objectives of zoning controls.
15 With respect to acquired rights (or legal non-conforming uses), s. 113(18) of the provincial Act allows Quebec municipalities to regulate them, prevent their substitution by other non-conforming uses, and to prohibit their extension and alteration. The municipality may not, however, order the cessation of such uses unless they have been abandoned or interrupted for “a reasonable period” no shorter than six months. In other words, the provincial legislation not only respects the doctrine of acquired rights, but makes it clear that municipalities must do so as well.
16 Here the municipality did not purport to prohibit the alteration (or “modification”) of acquired rights, although it was empowered to legislate in that regard under s. 113(18)(c) of the provincial Act. Nor, as the Court of Appeal pointed out, did it purport to suppress nude dance bars under the Cities and Towns Act, R.S.Q., c. C-19, whether under s. 414 (“decency and good morals”) or s. 410 (“general welfare in the territory of the municipality”). We therefore do not need to decide whether such a prohibition would have been valid or effective under the existing law.
17 Exercising its statutory powers of delegated legislation, the City of Saint-Romuald did enact zoning by-law No. 273-90, which came into force on May 22, 1991. The appellant places weight on s. 9 of the by-law which provides:
[translation]
9. Permitted Uses
The uses listed in the specification grid correspond to the description of uses set out in chapter IV. A line appearing opposite a class of uses means that all principal uses in that class are permitted, to the exclusion of all other uses. [Gonthier J.’s emphasis.]
18 In the appellant’s submission, the underlined words constitute a specific prohibition of the respondents’ non-conforming use. Read in that way, of course, it is a prohibition of all non-conforming uses, and if applied in derogation of acquired rights would serve to nullify them. On this point, I prefer the view taken by the Quebec Court of Appeal that the general language of s. 9 is not sufficient to constitute an express prohibition sufficient to overcome the respondents’ acquired rights.
V. Scope of the “Acquired Right”
19 Under the doctrine of “acquired rights”, the respondents were not only entitled to continue to use the premises as they were when the new by-law was passed, but was given some flexibility in the operation of that use. My colleague Gonthier J. notes that regard is to be had in such cases to “the real and reasonable expectations” of the landowner caught by changes in the zoning (para. 63 (emphasis deleted)). Gonthier J. also acknowledges (at para. 62) that “normal evolution” may occur in some uses with the passage of time, and that “a use protected by acquired rights may be exercised more intensively (Anjou (Ville d’) v. Vanier, C.A. Montréal, No. 500-09-001305-788, J.E. 83-325; Huot v. L’Ange-Gardien (Municipalité de), [[1992] R.J.Q. 2404 (C.A.)]; Soudure Mobile D. Pilon Inc. v. Larose, [1990] R.L. 93 (C.A.)) and adapt to the demands of the market or the technology that are relevant to it (Chutes-de-la-Chaudière [(Municipalité régionale de comté des) v. Compagnie 1846-0832 Québec Inc., [1994] R.J.Q. 618 (C.A.)], at p. 624, Tourigny J.A. dissenting)”. In my view, that is what happened here.
20 Similar flexibility also exists at common law. Thus in Central Jewish Institute v. City of Toronto, [1948] S.C.R. 101, a legal non-conforming use (private school) previously carried on only in part of the building was lawfully extended throughout the entire building, per Kellock J., at p. 114:
I do not think that the use made of the premises by the appellant after the school term recommenced in September was for a different purpose within the meaning of the statute from the use being made of them on July 24th. [Emphasis added.]
21 At this point, a distinction should be drawn between the type of legal non-conforming use and the intensity of such use. A legal non-conforming nursing home, for example, may want to double its 15 beds. The type of use would remain the same, but the intensity of that use would be substantially increased.
A. Intensity of Use
22 The respondents’ nightclub has substantially increased its business since switching from cowboy singers to nude dancers. There are more customers. More cars. More noise. Assuming for the moment that the “type” of use has not changed, is this increased intensity of use a basis for objection?
23 In Central Jewish Institute, supra, this Court concluded that so long as the type of use was continued (private school facilities), the owner was not limited to the then existing intensity (at the relevant time only the kitchen and a ground floor room of the building were used for school purposes). Rather, the appellant was entitled to expand the non-conforming use throughout its building. To some extent, the Court’s treatment of intensity of use was tied to the specific text of the provincial Act (which extended the immunity to the building itself), but the case has subsequently been applied more generally (I think correctly) to sanction increases in intensity of use so long as the same type of use is continued. My colleague, Gonthier J., has referred to the Quebec authorities. A similar principle operates in the common law provinces: see Canadian Occidental Petroleum, supra, at p. 268 (expanded manufacture of hazardous substances); O’Sullivan Funeral Home Ltd. v. City of Sault Ste. Marie, [1961] O.R. 413 (H.C.) (infrequent use of a funeral parlour no bar to expanded activity); Kiss v. Phil Dennis Enterprises Ltd. (1974), 46 D.L.R. (3d) 196 (Ont. H.C.) (where, at p. 202, the court noted approvingly that “the proposed change is one of degree, and not of kind of use”); Perth (Town) v. Perth Mews Ltd. (1991), 7 M.P.L.R. (2d) 259 (Ont. Ct. (Gen. Div.)) (the legal non-conforming right to use pinball machines in one part of the building was extended to all of it); Magdalena’s Rest Home Ltd. v. Etobicoke (City) (1992), 12 M.P.L.R. (2d) 316 (Ont. Ct. (Gen. Div.)) (rest home expanded from 15 to 17 beds); Moncton (City) v. Como (1990), 103 N.B.R. (2d) 286 (Q.B.) (expansion of existing equipment storage and repair business); Borins v. Toronto (City) (1988), 50 R.P.R. 43 (Ont. Dist. Ct.) (conversion of office space); 382671 Ontario Ltd. v. London (City) Chief Building Official (1996), 32 M.P.L.R. (2d) 1 (Ont. Ct. (Gen. Div.)) (addition of a unit in an apartment building).
24 There are, however, some limitations at the outer boundaries of increasing the intensity of use. This appears from the decision of Cory J.A. (as he then was) in R. v. Grant (1983), 23 M.P.L.R. 89 (Ont. C.A.), where the court refused to allow a legal non-conforming two-unit apartment building to be further subdivided into four units. While the precise result may to some extent conflict with this Court’s decision in Central Jewish Institute, supra (which was not cited by Cory J.A.), even Central Jewish Institute proceeded on the basis that the expansion of school activity would be reasonable and limited – in that particular case limited to the existing building.
25 In general, merely continuing the precise pre-existing activity, even at an intensified level, is clearly protected, but the intensification may be of such a degree as to create a difference in kind. A family farm which has a few pigs on the fringe of a town may continue as a legal non-conforming use, but the result may be otherwise if it is sought to expand its pork operation into “factory in the country” type intensive pig farming. While in one sense the “use” has continued, in another sense its character has been so altered as to become, in terms of its impact on the community, an altogether different use.
26 In the more usual type of situation, a non-conforming commercial use in a residential neighbourhood that enjoys increasing business should not ordinarily be penalized for its success by losing its “acquired right” to operate, even if a by-product of that success is some increased traffic and noise.
27 The analogous U.S. principle is succinctly stated in McQuillin, The Law of Municipal Corporations (3rd ed. rev. 1994), vol. 8A, at p. 126:
The distinction is between an increase in the amount of business, even a great increase, which does not work a change in use, and an enlargement of a nonconforming business so as to be different in kind in its effect on the neighborhood. [Emphasis added.]
28 This is a high threshold which it is unnecessary to explore on this appeal. Based on the evidence here, no valid objection could be taken to the respondents’ nightclub based on increased intensity of use.
B. Type of Use
29 The appellant argues that a nightclub offering western music is a different type of use than a nightclub presenting nude dancers. This is the real battleground between the appellant and the respondents.
30 A “use” may include a number of activities. A nightclub, as stated, serves food and drink and provides entertainment. The question here is how many of these activities, and of what nature, can be added, subtracted or modified before it can no longer be called the same “type” of use?
31 In Regina ex rel. Skimmings v. Cappy (1952), 103 C.C.C. 25 (Ont. C.A.), Oakwood Stadium in Toronto, a general venue for sports activities, was modified to accommodate stock car racing. The neighbours complained about the increased noise and disruption. The municipality launched a by-law prosecution. The stadium owners defended on the basis of a legal non-conforming use. The majority of the Court of Appeal, per Laidlaw J.A., acquitted the stadium owners on the basis that they operated a “general purpose” stadium whose permissible program (which presumably accorded with the owners’ “real and natural expectation”) was not limited to the type of specific events on “the day of the passing of the by-law” but included “public exhibitions and performances of all kinds” (p. 32). The dissenting judge concluded that the pre-existing use had been limited to certain types of exhibitions and performances, and stock car racing was obviously not included because the owners had been required to undertake a “substantial expenditure of money and complete reconstruction of the facilities so as to enable motor-racing to be carried on” (p. 29). The interesting question is why the majority took a broad view of the existing use and the dissent took a narrow view. Both of these views were sustainable on the facts. The majority seemed influenced by the idea of remoteness, i.e., that the new activity, while different, was not remote but was closely related to what had gone before. Although “neighbourhood effects” were not mentioned by the dissenting judge, I think it fair to say that if the facts were reversed so that the stadium had been reconstructed to eliminate stock car racing in favour of less noisy exhibitions such as walk-a-thons or lawn tennis, the neighbours (and the dissenting judge) might have taken a more expansive view of the pre-existing use.
32 The more recent common law jurisprudence on “non-conforming uses” is no less divided than the Quebec jurisprudence on “acquired rights”: see I. T. Kagan, “But I Do Not Want to Be Legal” (1993), 13 M.P.L.R. (2d) 252. The more restricted end of the definitional spectrum is illustrated by R. v. Kelly Landscape Contractors Ltd. (1980), 13 M.P.L.R. 67 (Ont. Co. Ct.), where it was held that a legal non-conforming business which grew flowers for sale could not lawfully sell the flowers (or fertilizers, etc.) from its premises. The added business, while closely related, was not the same.
33 The more generous end of the definitional spectrum is illustrated by Campbellton (City) v. Thompson (1994), 151 N.B.R. (2d) 1 (C.A.), where a landowner was permitted to add a rock-crusher to its existing non-conforming quarry operation. The trial judge had concluded that crushing rock was a different activity than extraction, and upheld the municipality’s objection. This was reversed by the Court of Appeal which applied its previous decision in Lordon v. Pitman (1980), 33 N.B.R. (2d) 23, in asking itself whether the introduction of the “new element” changed “the essential general use of the land” (para. 10). The added activity, it decided, did not do so. Again, the trial judge’s narrower view of the pre-existing use (extraction and sale of rock) was as open on the facts as the broader view taken by the Court of Appeal (a quarry operation includes an activity reasonably incidental thereto). The trial judge was worried about the neighbourhood effects of the added activity. The Court of Appeal seems to have decided the case on considerations of remoteness.
34 In my view, both remoteness and neighbourhood effects have a role to play in the proper disposition of this type of case. Each contributes to what Gonthier J. refers to as the real and natural expectation of the landowner. The Court’s objective is to maintain a fair balance between the individual landowner’s interest and the community’s interest. The landowner overreaches itself if (i) the scale or intensity of the activity can be said to bring about a change in the type of use, as mentioned above, or if (ii) the addition of new activities or the modification of old activities (albeit within the same general land use purpose), is seen by the court as too remote from the earlier activities to be entitled to protection, or if (iii) the new or modified activities can be shown to create undue additional or aggravated problems for the municipality, the local authorities, or the neighbours, as compared with what went before. The factors are balanced against one another. Thus, adding a metal panel beating operation to an automobile repair shop in a residential neighbourhood will probably (despite the logical business affinity) be characterized as a new type of use, whereas a local non-conforming grocer store use that adds an innocuous fax machine – clearly an activity unrelated to selling groceries – will likely succeed (assuming someone wished to challenge it) by defining its prior operation as a “convenience store” rather than a “grocery store”.
35 The relevance of remoteness is self-explanatory, but the relevance of neighbourhood effects perhaps requires some discussion. The balancing of interests takes place in the framework of zoning control. The Quebec law, as mentioned, expressly takes neighbourhood effects into account in the legislative establishment of use categories. The by-law in this particular case speaks of [translation] “volume, nuisance, compatibility, use and aesthetics”, and see Val-d’Or (Ville de) v. 2550-9613 Québec Inc., [1997] R.J.Q. 2090 (C.A.)). It stands to reason that in attempting to accommodate the landowner’s real and natural expectation of the continuation of the status quo, and to properly maintain the balance between the interests of the landowner and the commun