R v Cappy

1952 CarswellOnt 287, 1952 CanLII 280 (ON CA)

Henderson J.A. (dissenting) – #

On 15th February 1951 the respondents purchased the lands known as Oakwood Stadium and on 19th May 1951, they began to promote and conduct in the stadium stock car races.

Oakwood Stadium consists of an oval open space upon which there is sitting accommodation partly in open stands and partly in a covered stand. This stadium at the time of the passing of the by-law in 1948 and prior to the occupation of the respondents in February 1951 was suitable for permitting members of the public to witness various kinds of sport contests including the playing of soccer, rugby and track and field events. Prior to February 1951 there was a cinder track 18 feet wide around the perimeter of the playing field suitable for foot-races.

On 19th May 1951 the exhibition or contest of stock car races was held. This contest consists of a number of races of a designated number of laps in which six or eight cars take part. The playing-field area of the stadium is used as a repair pit for the cars involved and as a place to store them when they are not actually engaged in a race. A race commences when six or eight cars are lined up two abreast on the track. They complete one or two circles of the track at a slow speed and then the starter’s flag commences the race. The cars endeavour to complete the designated number of laps in the shortest possible time, passing each other from time to time.

The cars used are motor cars manufactured prior to 1939 and modified by their owners to increase the power, reduce the weight and increase the strength of the top, so that accidents are less likely to injure the occupants.

During the progress of the race the cars give off very loud noises from their exhaust and from the screeching of wheels and the clanging and banging when the cars collide with each other. There are also extensive fumes from the exhaust.

Shortly after the occupation of the premises by the respondents began in February 1951 substantial changes were made in the Oakwood Stadium at a cost of from $5,000 to $9,000. The major changes made were as follows:

(a) The track was increased in width from 18 feet to 40 feet.

(b) The four lower rows of seats were removed from the bleachers and a safety-rail consisting of a fence, the posts of which were in the form of concrete-filled boilers. was substituted.

(c) The cinder track was covered with sand and gravel and oiled. The ends of the track were banked to provide an inclined turn and the banked portions were covered with asphalt.

The evidence of Mr. Crang, the former owner, is that prior to 1948 the stadium management had experimented with automobile and motorcycle racing as follows: (a) midget car racing, one week in 1932 and one week in 1934; (b) racing cars, two one-week meets about two years apart; (c) motorcycles, once and one race at a carnival. Also that the former owners had reached the conclusion prior to April 1948 that the premises were unsafe for the racing of cars, midget cars or motorcycles and this use had been abandoned for the reason that the premises would require an expenditure of money on them to make them safe for car, midget car or motorcycle races.

Section 390 of The Municipal Act is in part as follows:

(1) By-laws may be passed by the councils of local municipalities:

1. For prohibiting the use of land, for or except for such purposes as may be set out in the by-law, within any defined area or areas or abutting on any defined highway or part of a highway….

(6) No by-law passed under this section shall apply to any land, building or structure which, on the day of the passing of the by-law, is used or erected for any purpose prohibited by the by-law, so long as it continues to be used for that purpose, nor shall the by-law apply to any building or structure the plans for which have prior to the day of the passing of the by-law been approved by the municipal architect or building inspector, so long as the building or structure when erected is used for the purpose for which it was erected.

The learned County Court Judge in his reasons for judgment came to the conclusion that since at the time of the passing of the by-law the premises were used for a non-residential purpose, they could continue to be used for any non-residential purpose. In his opinion the effect of the qualifying clause “so long as it continues to be used for that purpose” is the same as “so long as it continues to be used for a non-residential purpose”. In other words, if the premises had been used as a store at the time of the passing of the by-law they could be used as a factory, since both are non-residential purposes.

Also in his reasons he finds that the use being made of the lands prior to the By-law and the use being made on the date of the conviction were “for a similar purpose”. He also finds that the changes made in the premises were substantial but “the character of the use of the buildings and lands were not substantially changed”.

I am unable to agree with the conclusion of the learned County Court Judge or with his reasons therefor. In my opinion the change made in the character of the premises so as to adapt them for motor car racing is in direct conflict with the provisions of the by-law and of the statute under which it was passed.

Prior to the date of the passing of the by-law the premises in question were not used and were not adapted or suitable for use for motor car racing and it required a substantial expenditure of money and complete reconstruction of the facilities so as to enable motor car racing to be carried on.

In presenting his appeal Mr. Mason properly referred to the facts only as they were presented by the respondents, and based his appeal purely upon the question of law.

I am of opinion that the judgment of the learned County Court Judge should be reversed and that the convictions by the magistrate should be restored, and that the respondents should pay the costs of the appeal to His Honour Judge Factor, of the motion before Mr. Justice Roach for leave to appeal, and of this appeal.

Laidlaw J.A. #

The appeal to this Court is on a question of law alone but it is necessary first to set forth the material facts. A company named Oakwood Securities Limited was incorporated under the provisions of the Ontario Companies Act by letters patent dated the 31st October 1925. The purposes and objects of that company, stated briefly, are in part:

(b) to carry on generally the business of furnishing amusement to the public; to carry on the business of operating a hippodrome, circus, racecourse, amusement park, theatre and exhibition and of presenting performances of all kinds, in all its branches and in particular to lay out and prepare any lands or emplacements for the running of horse, automobile, motorcycle, bicycle, aeroplane and all kinds of races … to construct grand or other stands … and other erections, buildings and conveniences whether of a permanent or temporary nature which may seem directly or indirectly conducive to the Company’s objects;

(c) to conduct, hold and promote race meetings and athletic sports, matches of all kinds…

After incorporation the company proceeded to carry on its business on the lands and premises known and referred to as the Oakwood Stadium situate in the township of York. It used the stadium for motorcycle races, midget car races, automobile races, dog races, rodeo carnivals and, according to the secretary-treasurer, “tried nearly everything we thought would draw the public”. There was a quarter-mile race-track about 18 feet in width surrounding a playing field. The track was suitable for foot-races but unsafe for motorcycle, stock car or midget car races. The company was not willing to spend the money to make the track safe for races of that kind and partly for that reason gave up having them but continued to carry on its activities of other kinds on the property until it was sold by the company to the respondents in 1951.

Pursuant to the powers contained in what is now s. 390 of The Municipal Act, R.S.O. 1950, c. 243, the council of the Township of York passed By-law 13249 dated the 5th April 1948, which was approved by an order of the Ontario Municipal Board on the 27th April 1948. I reproduce that by-law, in part, as follows:

A BYLAW

No. 13249

TO ESTABLISH a Restricted District or Zone within a defined area of the Township of York (Glenhurst Avenue).

THE MUNICIPAL COUNCIL OF THE CORPORATION OF THE TOWNSHIP OF YORK ENACTS AS FOLLOWS:

(1)

THAT no person shall use any land or erect or use any building for any other purpose than that of a detached or semi-detached private residence, duplex, triplex, double duplex or Apartment House with suitable out buildings therefor within that area of the Township of York defined as follows: …

(3)

THAT this by-law shall not apply to any land or buildings which on the day the said By-law is passed is erected or used for any purpose prohibited by this By-law so long as it continues to be used for that purpose. Nor shall it apply to any buildings, the plans of which have been approved by the Municipal Building Inspector prior to the date of the passing of the By-law so long as when erected it is used for the purpose for which it was erected….

ENACTED AND PASSED THIS 5TH DAY OF APRIL 1948.

On 15th February 1951 the respondents purchased the property and commenced to use it for soccer, football matches, boxing matches, baseball games, “track-meets” and for “stock car races”. A stock car is described as “a car you might buy on a lot or drive on the street … to differentiate from special racing cars”. Changes were made by the respondents to make the track suitable for stock car races. The width was increased from 18 feet to about 40 feet, the surface was treated, the corners were banked higher, safety rails were erected and a substantial sum of money was expended for the work.

Counsel for the appellant maintains that the learned judge in the Court below ought to have held that the use of the property by the respondents for stock car racing was contrary to the provisions of By-law 13249. He argues that the use of the property for that purpose was abandoned, or at least discontinued, prior to the passing of the by-law and that in consequence clause 3 of the by-law is not applicable so as to afford the respondents a good answer to the charge against them. That clause corresponds with s. 390(6) of The Municipal Act and limits the scope of the by-law by express provision that it shall not apply to any land, building or structure of the character described therein. It will be observed that there are two classes of property covered by the subsection, namely, land and a building or structure. It will be observed also that there are two specifications set forth in the clause. Firstly, in the case of land it must be in use on the day of the passing of the by-law for a purpose prohibited by the by-law, and in the case of a building or structure it must be erected on that day for such a purpose. Secondly, the use of the land or of the building or structure for a purpose prohibited by the by-law must continue. Thus, if the use of either the land or a building or structure for a purpose prohibited by the by-law has commenced either before or after the day of the passing of the by-law and there after has been discontinued, the property thereupon ceases to meet the specifications contained in the clause and the by-law becomes applicable to it. In the present case both the land and structures comprised in Oakwood Stadium were used for the same purpose, and the use commenced many years before the by-law was passed. There can be no doubt that the use of the whole property was for a purpose prohibited by the by-law.

The cardinal question for consideration is whether or not the use for that purpose was discontinued before the day of the passing of the by-law. That question can be answered only after considering and determining what was the purpose for which the property was used. In my opinion that purpose was a general one. It comprehended the use of the stadium for public amusement and entertainment and for public exhibitions and performances of all kinds. The purpose must be regarded collectively as a whole and cannot properly be divided into parts. Thus it cannot be said the purpose for which the property was used on the day of the passing of the by-law was for football games or for foot-races or for any other particular kind of public entertainment, exhibition or performance. It was for one and all of that kind of activity. It follows that, in my opinion, the purpose for which the property was used at the time of the passing of the by-law did not change and the use of the property for that purpose did not cease merely because the users of it were unwilling at one time, prior to the passing of the by-law, to spend the money necessary to make part of the property suitable and safe for one particular kind of activity within the general class, and for that reason in part discontinued that particular kind of public entertainment or performance. Nor did the fact that at a later date the users of the property decided to spend the money and thereafter made the changes in the property necessary to make it suitable and safe for stock car races have the effect of changing the purpose for which the property was used. I think that the purpose for which the property was used at all times before and after the passing of the by-law was the general one as I have described it above, and that the use for that purpose was not at any time discontinued. Therefore, I hold that the by-law was not applicable to the land, building or structure known as Oakwood Stadium on the day of the alleged offence. Accordingly, the appeal should be dismissed.