THE EVOLUTION OF LEGAL NON-CONFORMING RIGHTS

Introduction: Many, if not most, municipalities across Ontario have provisions in their zoning by-laws that purport to limit repair, renovation or use of buildings that are non-conforming as to use or non-complying as to performance standards. The intent and effect of these by-laws are to “encourage” property owners to bring non-conformity or non-compliance to an end. Two recent decisions, TDL Group Corp. v. Ottawa (City), 2009 Carswell Ont 7336 (O.M.B.), striking out a portion of the City of Ottawa’s zoning by-law regarding non-conforming rights, and Ottawa (City) v. TDL Group Corp., 2009 Carswell Ont 7168 (Ont. Div. Ct.), which denied the City of Ottawa’s leave to appeal of an order of the Ontario Municipal Board (OMB or Board), signifies a clear and unambiguous ruling that municipalities may not limit or coercively bring to an end non-conforming or non-complying rights beyond the narrow constraints permitted by the Planning Act, R.S.O. 1990, c. P.13 and at common law.

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