Cite as: Dartmouth (City) v. Ramia, 1991 NSCA 4 IN THE SUPREME COURT APPEAL DIVISION Jones, Hallett and Matthews, JJ.A. BETWEEN: CITY CLERK, on behalf of the CITY OF DARTMOUTH, duly authorized by City Council Appellant - and - CHAFICA RAMIA Respondent THE COURT: Appeal dismissed with costs in the amount of Sl,OOO.OO per reasons for judgment of Jones, J.A.; Hallett and Matthews, JJ.A. concurring. S.C.A. No. 02358 OF NOVA SCOTIA Floyd K. Horne, Q.C. for the appellant David G. Coles for the respondent Appeal Heard: March 19, 1991 Judgment Delivered: April 19, 1991
JONES, J .A. : This is an appeal Justice Davison dismissing an application by of Dartmouth to restrain the her property in a manner which the Dartmouth Land Use By-law. Mrs. Ramia is the Ramia Grocery at 79 Boland her husband purchased the store in 1980. had been operated as a grocery store for years. Mr. Ramia died in 1987 over the business. In 1989 Mrs. Ramia necessary to expand the business to include sandwiches and snack foods in order to raise sufficient to support her family. She discussed her Turner the Chief Building to renovate the store to allow of cooking equipment for pizzas and to provide take out services. Mrs. Ramia that her proposal was is sued a bui lding permit a contractor who completed the premises. She obtained from a decision of Mr. the City respondent from using does not conform to owner and operator of Road, Dartmouth. She and It apparently some thirty and Mrs. Ramia took decided that it was revenue proposal with Mr. Hawley Inspector for the City, for the installation and sub-sandwiches Mr. Turner assured was acceptable and she by the City. She hired the necessary repairs to a license from the Board
- 2 Â of Health for the City for Mr. Turner inspected the renovations. cost some $22,000.00. There was no dispute Mr. Justice Davison that the area was zoned residential and that the operation of district was a non-conforming use. Mrs. Ramia acknowledged a pizza oven and donair machine that pizzas and donairs are delivered from the store. The only groceries observed cigarettes, chocolate bars and with a refrigerated dairy case containing soft drinks and an ice cream freezer. Evidence was adduced L'Esperance, the City Development development permit had been and that the change in use zoning by-laws. Evidence was of the City to show that Mrs. the zoning regulations. The application before was made under s. 108 of the 9, which provided as follows: "RIGHT OF ACTION WHERE CONTRAVENTION an eating establishment. The renovations on the hearing before a grocery store in the that she operates on the premises and on the premises were potato chips together from Mr. Glenn Officer, that no issued by his department did not comply with the also produced on behalf Ramia was familiar with Mr. Justice Davison Planning Act, 1983, c.
- 3 Â 108(1) In the event of of or failure to comply any by-law or regulation and in addi tion to or in lieu of proceedings authorized by law (a) the clerk in municipality when authorized by the council or by a standing committee of the council; or (b) the Director in the name of Her Majesty in the right of authorized by the Minister, may bring an action or other legal proceedings in respect thereof in of the Supreme Court or in for any or all of the by this Section or otherwise law. POWERS OF JUDGE (2) A Judge of the Trial Division Supreme Court or a jUd~e may hear and determine the same at any time, in court or in chambers, to any other remedy or relief may (a) make orders restraining the continuance or repetition of any or failure in respect of the same property; (b) make orders directing or destruction of any thereof which is in fails to comply with this Act, or a or regulation made under authorizing the councilor committee thereof or municipality, or the order is not complied with, the land and premises with necessary workers and equipment and to the structure or part thereof at the expense of the owner; (c) make such further recovery of the expense of any such removal and destruction and any contravention with this Act or under this Act any other the name of the the Province where the Trial Division a county court remedies provided provided by of the of the county court and in addition such contravention the removal structure or part contravention of or by-law this Act, and a standing an official of the Director, if such to enter upon remove and destroy order as to the for the enforcement
- 4 of this Act, or by-law and as to costs, as deems proper, and any such order may interim or final." Section 85 of that Act provided: "RESTRICTION ON NON-CONFORMING USE 85(1) No increase in addition to a structure required by an enactment, a non-conforming use therein but such use may be the structure. NO EXTENSION OF NON-CONFORMING USE (lA) For greater certainty, of a non-conforming use not contained within a structure shall he made that the use occupies. CHANGE IN USE (2) A non-conforming use shall not be changed to any other use unless the use is permitted for that property by the 1and-use-by-1aw." The trial judge found that Mrs. on the represention of the and expended monies as a result of those discussions. He also held that the burden was that there was a change of that issue he concluded as follows: "Use of premises as a restaurant is a distinct change from use of premises as at what point between it be said that the has changed? A restaurant which sells bakery products does not change  or regulation, the court or judge be interlocutory, volume of or any shall, except as be made while is continued, extended throughout no extension beyond the limits Ramia relied City Building Inspector on the City to show use in the premises. On a store. But the two extremes can use of the premises its use anymore
- 5 than the use of premises as because sandwiches are on the premises. It is as to when the character changes to the extent it can has been a change in use. on the evidence before has been a change in use. In any event, it is my view that the defendant has received the permission to carryon the use to putting her property." The trial judge dismissed The City has appealed from that decision. issue on the appeal is non-conforming use had been as envisaged under s. 85 of the Planning Act. The appellant contended use consisted of the preparation of food on the premises and the delivery of the prepared of customers. On this issue the trial judge stated: "Has there been a change in use? has been a neighbourhood decades. The character has changed considerably to the point where many referred to as •convenience Undoubtedly, the emergence major food chains have change in the smaller neighbourhood stores. Corner stores are now of wares which have no - e.g. video tapes and magazines. be said that the addition products amount to a change in use. The City takes the position that the delivery of the products to homes of food on the premises  a store changes prepared and sold a question of fact of the property be said there I am not prepared me to find there of the City which she is now the application. The main whether the existing changed to any other use that the changed food to the homes The premises grocery store for of grocery stores over the years grocery stores are stores'. and growth of contributed to the selling a multitude resemblance to food It cannot of these new and the preparing are the factors
- 6 Â which indicate a I change in use'. gone by, delivery of groceries stores to private homes was commonplace." It is clear from trial judge appreciated the him. In the final analysis a change of use was a question of this Court to review findings in Stein v. The Ship Kathy at p. 808 as follows: "These authorities are meaning that the findings trial are immutable, but are not to be reversed established that the made some palpable and which affected his assessment While the Court of Appeal the duty of re-examining order to be satisfied occurred, it is not, its function to substitute of the balance of probability for the findings of the Judge who presided at the trial." The trial judge after was not satisfied that the the burden of proof. I cannot palpable and overriding error conclusion. I would dismiss to the respondent which I would fix at $1,000.00. Concurred in: , - ",- ''J '' }\ // Hallett, J.A. ! Matthews, J.~~~~~ In years from small these passages that the issue that was before whether there had been of fact. The power of fact was stated K. (1976), 2 S.C.R. 802 not to be taken as of fact made at rather that they unless it can be learned trial judge overriding error of the facts. is seized with the evidence in that no such error in my view part of its assessment hearing the evidence appellant had discharged say that he made any in ccming to, that the appeal with costs
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.